EXHIBIT 4.1
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UNIFI COMMUNICATIONS, INC., as Issuer
and
FLEET NATIONAL BANK, as Trustee
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INDENTURE
Dated as of February 21, 1997
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$175,000,000
Aggregate Principal Amount
14% Senior Notes due 2004
Series B 14% Senior Notes due 2004
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of February 21, 1997
Trust Indenture Indenture
Act Section Section
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(S) 310(a)(1)..................................... 7.11
(a)(2)..................................... 7.11
(a)(3)..................................... N.A.
(a)(4)..................................... N.A.
(a)(5)..................................... 7.11
(b)........................................ 7.09; 7.11; 11.02
(c)........................................ N.A.
(S) 311(a)........................................ 7.12
(b)........................................ 7.12
(c)........................................ N.A.
(S) 312(a)........................................ 2.05
(b)........................................ 11.03
(c)........................................ 11.03
(S) 313(a)........................................ 7.07
(b)(1)...................................... 10.03
(b)(2)...................................... 7.07
(c)......................................... 7.07; 11.02
(d)......................................... 7.07
(S) 314(a)........................................ 4.07; 11.02
(b)......................................... 10.02
(c)(1)...................................... 11.04
(c)(2)...................................... 11.04
(c)(3)...................................... N.A.
(d)......................................... 10.03; 10.04;10.05
(e)......................................... 11.05
(f)......................................... N.A.
(S) 315(a)........................................ 7.01
(b)........................................ 7.05; 11.02
(c)........................................ 7.01
(d)........................................ 7.01
(e)........................................ 6.11
(S) 316(a) (last
sentence)...................................... 2.09
(a)(1)(A).................................. 6.05
(a)(1)(B).................................. 6.04
(a)(2)..................................... N.A.
(b)........................................ 6.07
(c)........................................ 9.04
(S) 317(a)(1)..................................... 6.08
(a)(2)..................................... 6.09
(b)........................................ 2.04
(S) 318(a)........................................ 11.01
(b)........................................ N.A.
(c)........................................ 11.01
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.01. Definitions........................................... 1
Section 1.02. Incorporation by Reference of Trust Indenture Act..... 21
Section 1.03. Rules of Construction................................. 21
ARTICLE TWO
THE SECURITIES
Section 2.01. Forms and Dating...................................... 22
Section 2.02. Execution and Authentication.......................... 23
Section 2.03. Registrar and Paying Agent............................ 23
Section 2.04. Paying Agent To Hold Money in Trust................... 24
Section 2.05. Securityholder Lists.................................. 24
Section 2.06. Transfer and Exchange................................. 24
Section 2.07. Replacement Securities................................ 25
Section 2.08. Outstanding Securities................................ 25
Section 2.09. Treasury Securities................................... 26
Section 2.10. Temporary Securities.................................. 26
Section 2.11. Cancellation.......................................... 26
Section 2.12. Defaulted Interest.................................... 26
Section 2.13. CUSIP Number.......................................... 26
Section 2.14. Deposit of Moneys..................................... 27
Section 2.15. Restrictive Legends................................... 27
Section 2.16. Book-Entry Provisions for Global Security............. 28
Section 2.17. Special Transfer Provisions........................... 29
Section 2.18. Liquidated Damages Under Registration Rights Agreement 32
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Notices to the Trustee................................. 32
Section 3.02. Selection of Securities To Be Redeemed................. 33
Section 3.03. Notice of Redemption................................... 33
Section 3.04. Effect of Notice of Redemption......................... 34
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Page
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Section 3.05. Deposit of Redemption Price............................ 34
Section 3.06. Securities Redeemed or Purchased in Part............... 34
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.................................. 35
Section 4.02. Maintenance of Office or Agency........................ 35
Section 4.03. Corporate Existence.................................... 35
Section 4.04. Payment of Taxes and Other Claims...................... 36
Section 4.05. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.................................... 36
Section 4.06. Compliance Certificate................................. 37
Section 4.07. SEC Reports and Other Information...................... 37
Section 4.08. Limitation on Incurrence of Additional Indebtedness.... 38
Section 4.09. Limitation on Restricted Payments...................... 38
Section 4.10. Limitation on Preferred Stock of Restricted Subsidiaries 41
Section 4.11. Limitation on Liens.................................... 42
Section 4.12. Change of Control...................................... 42
Section 4.13. Disposition of Proceeds of Asset Sales................. 44
Section 4.14. Limitation on Transactions with Affiliates............. 46
Section 4.15. Limitation on Restricted and Unrestricted Subsidiarie.. 47
Section 4.16. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries...................... 48
Section 4.17. Escrow Account......................................... 49
Section 4.18. Limitation on Sale and Leaseback Transactions.......... 49
Section 4.19. Limitation on Line of Business......................... 49
Section 4.20. Waiver of Stay, Extension or Usury Laws................ 50
Section 4.21. Further Assurances to the Trustee...................... 50
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc. ........................... 50
Section 5.02. Successor Substituted................................... 51
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE SIX
REMEDIES
Page
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Section 6.01. Events of Default....................................... 52
Section 6.02. Acceleration............................................ 53
Section 6.03. Other Remedies.......................................... 54
Section 6.04. Waiver of Past Defaults................................. 54
Section 6.05. Control by Majority..................................... 54
Section 6.06. Limitation on Suits..................................... 55
Section 6.07. Right of Holders To Receive Payment..................... 55
Section 6.08. Collection Suit by Trustee.............................. 55
Section 6.09. Trustee May File Proofs of Claim........................ 55
Section 6.10. Priorities.............................................. 56
Section 6.11. Undertaking for Costs................................... 56
Section 6.12. Restoration of Rights and Remedies...................... 56
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties.................................................. 57
Section 7.02. Rights of Trustee....................................... 57
Section 7.03. Individual Rights of Trustee............................ 58
Section 7.04. Trustee's Disclaimer................................... 58
Section 7.05. Notice of Default...................................... 59
Section 7.06. Money Held in Trust.................................... 59
Section 7.07. Reports by Trustee to Holders.......................... 59
Section 7.08. Compensation and Indemnity............................. 59
Section 7.09. Replacement of Trustee................................. 60
Section 7.10. Successor Trustee by Merger, etc....................... 61
Section 7.11. Eligibility; Disqualification.......................... 61
Section 7.12. Preferential Collection of Claims Against Company...... 61
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obligations............... 62
Section 8.02. Legal Defeasance and Covenant Defeasance............... 63
Section 8.03. Application of Trust Money............................. 65
Section 8.04. Repayment to Company................................... 66
Section 8.05. Reinstatement.......................................... 66
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders............................. 66
Section 9.02. With Consent of Holders................................ 67
Section 9.03. Compliance with Trust Indenture Act.................... 68
Section 9.04. Revocation and Effect of Consents...................... 68
Section 9.05. Notation on or Exchange of Securities.................. 69
Section 9.06. Trustee May Sign Amendments, etc....................... 69
ARTICLE TEN
COLLATERAL AND SECURITY; CONTINGENT WARRANTS
Section 10.01. Escrow Agreement..................................... 69
Section 10.02. Recording and Opinions............................... 70
Section 10.03. Release of Collateral................................ 71
Section 10.04. Certificates of the Company.......................... 71
Section 10.05. Authorization of Actions To Be Taken by the Trustee
Under the Escrow Agreement........................... 71
Section 10.06. Authorization of Receipt of Funds by the Trustee
Under the Escrow Agreement........................... 72
Section 10.07. Termination of Security Interest..................... 72
Section 10.08. Issuance of Contingent Warrants...................... 72
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939............................ 73
Section 11.02. Notices................................................ 73
Section 11.03. Communication by Holders with Other Holders............ 74
Section 11.04. Certificate and Opinion as to Conditions Precedent..... 74
Section 11.05. Statements Required in Certificate or Opinion.......... 74
Section 11.06. Rules by Trustee, Paying Agent, Registrar.............. 75
Section 11.07. Governing Law.......................................... 75
Section 11.08. No Interpretation of Other Agreements.................. 75
Section 11.09. No Recourse Against Others............................. 75
Section 11.10. Successors............................................. 75
Section 11.11. Counterparts........................................... 75
Section 11.12. Separability........................................... 75
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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Page
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Section 11.13. Table of Contents, Headings, etc....................... 75
Section 11.14. Benefits of Indenture.................................. 76
Section 11.15. Business Days.......................................... 76
SIGNATURES
EXHIBIT A Form of Initial Security
EXHIBIT B Form of Exchange Security
EXHIBIT C Form of Legend for Book-Entry Security
EXHIBIT D Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
EXHIBIT E Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
EXHIBIT F Form of Escrow Agreement
EXHIBIT G Form of Subordination
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of February 21, 1997, between UNIFI
COMMUNICATIONS, INC., a corporation incorporated under the laws of the State of
Delaware (the "Company"), and FLEET NATIONAL BANK, a national banking
association, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 14%
Senior Notes due 2004 (the "Initial Securities") and the Company's Series B 14%
Senior Notes due 2004 (the "Exchange Securities" and together with the Initial
Securities, the "Securities").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or
at the time it merges or consolidates with the Company or any Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person, including any such Indebtedness incurred by such Person in connection
with, or in anticipation or contemplation of, such Person's becoming a
Restricted Subsidiary or such acquisition, merger or consolidation.
"Additional Interest" has the meaning set forth in Section 2.18.
"Affiliate" means a Person who, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Company or any Restricted Subsidiary. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Notwithstanding the
foregoing, the term "Affiliate" shall not, with respect to the Company, include
any Restricted Subsidiary of the Company.
"Agent" means any Registrar or Paying Agent of the Securities.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Subsidiary of the Company, or shall be merged with or into the Company
or any Restricted Subsidiary, (b) the acquisition by the Company or any
Restricted Subsidiary of the assets of any Person which constitute all or
substantially all of the assets of such Person (c) the acquisition by the
Company or any Restricted Subsidiary of any division or line of business of any
Person or (d) any other asset acquisition by the Company or a Restricted
Subsidiary which permits or requires pro forma financial information prepared in
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accordance with Rule 11-01 under Regulation S-X promulgated under the Securities
Act.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease, assignment or other transfer or disposition for value (for
purposes of this definition, each, a "disposition") by the Company or any
Restricted Subsidiary (including, without limitation, pursuant to any Sale and
Leaseback Transaction or any merger or consolidation of any Subsidiary of the
Company with or into another Person (other than the Company or any Restricted
Subsidiary of the Company) whereby such Subsidiary shall cease to be a
Restricted Subsidiary) to any Person of (i) any Capital Stock of any Restricted
Subsidiary (other than in respect of directors' qualifying shares or investments
by foreign nationals mandated by applicable law); (ii) all
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or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary; or (iii) any other
properties or assets of the Company or any Restricted Subsidiary, other than in
the ordinary course of business; provided, however, that for purposes of Section
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4.13, Asset Sales shall not include: (a) a transaction or series
of related transactions for which the Company or the applicable Restricted
Subsidiary receives aggregate consideration of less than $1,000,000 in any
fiscal year; (b) transactions complying with Section 5.01; (c) any disposition
to the Company; (d) any disposition to a Restricted Subsidiary of the Company;
(e) any Lien securing Indebtedness to the extent that such Lien is granted in
compliance with Section 4.11; (f) any Restricted Payment (or Permitted
Investment) permitted by Section 4.09; and (g) any disposition of assets or
property in the ordinary course of business and on ordinary business terms to
the extent such property or assets are obsolete, worn out or no longer useful in
the Company's or any Restricted Subsidiary's business.
"Asset Sale Offer" has the meaning set forth in Section 4.13.
"Asset Sale Offer Price" has the meaning set forth in Section 4.13.
"Asset Sale Purchase Date" has the meaning set forth in Section 4.13.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capitalized Lease Obligation, and at
any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the
initial term thereof as determined in accordance with GAAP, discounted from the
last date of such initial term to the date of determination at a rate per annum
equal to the discount rate which would be applicable to a Capitalized Lease
Obligation with a like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. "Attributable Value" means,
as to a Capitalized Lease Obligation under which any Person is at the time
liable and at any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with GAAP.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar law
for the relief of debtors.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
State of New York or State of Massachusetts are authorized or obligated by law,
regulation or executive order to close.
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"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock, including each class of common stock and
Preferred Stock of such Person and (ii) with respect to any Person that is not a
corporation, any and all partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for purposes of this Indenture, the
amount of any such obligation at any date shall be the capitalized amount
thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) certificates
of deposit with a maturity of 180 days or less of any financial institution that
is organized under the laws of the United States, any state thereof or the
District of Columbia that are rated at least A-1 by S&P or at least P-1 by
▇▇▇▇▇'▇ or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 180 days from the date of
acquisition; provided that the terms of such agreements comply with the
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guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Change of Control" means the occurrence of one or more of the
following events:
(i) any sale, lease, exchange, transfer or other disposition (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company and the Restricted Subsidiaries, taken as a whole, to
any Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a "Group") (whether or not otherwise in compliance with the
provisions of this Indenture), other than a Permitted Holder, in any such event
pursuant to a transaction in which, immediately after the consummation thereof
the Person or Persons owning a majority of the voting power of the Voting Stock
of the Company immediately prior to the consummation of such transaction, shall
not own, directly or indirectly, a majority of the voting power of the Voting
Stock of the Person to whom such sale, lease, exchange, transfer or other
disposition has been made; or
(ii) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors (together with any
new directors who were nominated by a Permitted Holder or whose election to such
Board of Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of a majority of the directors of the Company
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then in
office; or
(iii) any Person or Group (other than a Permitted Holder) is or
becomes, by purchase, tender offer, exchange offer, open market purchases,
privately negotiated purchases or otherwise, the
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"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
whether or not applicable, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or after the passage of
time only), directly or indirectly, of more than 50% of the total then
outstanding voting power of the Voting Stock of the Company (for the purpose of
this clause (iii), such Person or Group will be deemed to "beneficially own"
(determined as aforesaid) the voting power of the Voting Stock of a corporation
(the "specified corporation") held by any other corporation (the "parent
corporation") if such Person or Group "beneficially owns," directly or
indirectly, a majority of the voting power of the Voting Stock of such parent
corporation); or
(iv) the Company consolidates with or merges into another Person and
the stockholders immediately prior to such merger or consolidation hold less
than a majority of the voting power of the Voting Stock of the resulting entity.
"Change of Control Date" has the meaning set forth in Section 4.12.
"Change of Control Offer" has the meaning set forth in Section 4.12.
"Change of Control Payment Date" has the meaning set forth in Section
4.12.
"Closing Price" means on any Trading Day with respect to the per share
price of any shares of Capital Stock the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if such shares of Capital Stock are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on Nasdaq or,
if such shares are not listed or admitted to trading on any national securities
exchange or quoted on such automated quotation system but the issuer is a
Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act) and the
principal securities exchange on which such shares are listed or admitted to
trading is a Designated Offshore Securities Market (as defined in Rule 902(a)
under the Securities Act), the average of the reported closing bid and asked
prices regular way on such principal exchange or, if such shares are not listed
or admitted to trading on any national securities exchange or quoted on such
automated quotation system and the issuer and principal securities exchange do
not meet such requirements, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm that is selected from time to time by the Company for that purpose.
"Common Stock" means, with respect to any Person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such Person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it (or any previous successor) pursuant to this Indenture,
and thereafter means such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice-Chairman, its President, an Executive Vice President or a Vice President,
and by any one of its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, in form and substance satisfactory to the Trustee and
delivered to the Trustee.
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"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income of such
Person, plus (ii) to the extent such Consolidated Net Income has been reduced
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thereby, (A) all income taxes of such Person and its Restricted Subsidiaries
paid or accrued in accordance with GAAP for such period (other than income taxes
attributable to extraordinary or nonrecurring gains or losses), (B) Consolidated
Interest Expense of such Person and (C) without duplication of any amount
included in subclause (A) or (B) of this clause (ii), Consolidated Non-Cash
Charges of such Person, all as determined on a consolidated basis for such
Person and its Restricted Subsidiaries in conformity with GAAP, less (iii) (A)
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all non-cash items increasing such Consolidated Net Income for such period and
(B) all cash payments during such period relating to non-cash charges that were
added back in determining Consolidated EBITDA in any prior period, all as
determined on a consolidated basis for such Person and its Restricted
Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Swap
Obligations (including any amortization of discounts), (c) the interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid or accrued by such
Person and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, however, that there shall be excluded therefrom, without
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duplication, (a) gains and losses from sales or other dispositions of assets of
such Person or any Restricted Subsidiary of such Person or of Capital Stock of
any Restricted Subsidiary of such Person or abandonments or reserves relating
thereto and the related tax effects according to GAAP, (b) items classified as
extraordinary or nonrecurring gains and losses, and the related tax effects
according to GAAP, (c) the net income of any Unrestricted Subsidiary and Persons
(other than Restricted Subsidiaries) accounted for by such Person using the
equity method of accounting, except to the extent of cash dividends or
distributions actually paid in cash to such Person or any Restricted Subsidiary
(in the case of any such payment to a Restricted Subsidiary, subject to the
limitations set forth in clause (e) of this definition), (d) the net income (or
loss) of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Restricted Subsidiary of such first referred to
Person or is merged or consolidated with such Person or any of its Restricted
Subsidiaries, (e) the net income (but not loss) of any Restricted Subsidiary of
such Person for such period to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by charter, contract (other than, for purposes of Section 4.08, any such payment
restrictions set forth in any Vendor Financing Arrangement permitted to be
incurred under this Indenture), operation of law or otherwise (regardless of any
waiver), and (f) any gain or loss realized upon the termination of any employee
benefit plan, on an after-tax basis.
"Consolidated Net Worth" means, with respect to any Person, at any
date, the consolidated stockholders' equity of such Person and its Restricted
Subsidiaries, as determined on a consolidated basis in accordance with GAAP,
less any amounts attributable to Disqualified Capital Stock of such Person and
any Preferred Stock of any of its Restricted Subsidiaries (other than to the
extent held by such Person or any of its Restricted Subsidiaries).
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"Consolidated Non-Cash Assets" means, with respect to any Person on
any date of determination, the total assets of such Person and its Restricted
Subsidiaries less all cash and Cash Equivalents (including restricted cash) of
such Person and its Restricted Subsidiaries on such date determined on a
consolidated basis in accordance with GAAP. For purposes of the preceding
sentence, the "date of determination" shall be the last day of the fiscal
quarter immediately preceding the date of determination.
"Consolidated Non-Cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary or nonrecurring item and net of any cash payments
made in such period in respect of any such non-cash expense).
"Consolidated Total Indebtedness" means, with respect to any Person,
on any date, without duplication, the aggregate outstanding principal amount of
Indebtedness of such Person and its Restricted Subsidiaries.
"consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its Subsidiaries (or its Restricted
Subsidiaries, as the case may be) if and to the extent the accounts of such
Person and each of its Subsidiaries (or its Restricted Subsidiaries, as the case
may be) would normally be consolidated, all in accordance with GAAP. The term
"consolidated" shall have a meaning correlative to the foregoing.
"Contingent Warrants" means warrants issued to the Holders of the
Securities, exercisable for 8.0% of the Common Stock of the Company on a fully-
diluted basis as of the date of such issuance after giving effect to the
issuance of such Contingent Warrants in the event that the Company does not
effect a primary underwritten public offering (excluding any offering pursuant
to Form S-8 under the Securities Act or any other publicly registered offering
pursuant to the Securities Act pertaining to an issuance of shares of Common
Stock or securities exercisable therefor under any benefit plan, employee
compensation plan, or employee or director stock purchase plan) of Common Stock
of the Company pursuant to an effective registration statement under the
Securities Act on or prior to September 1, 1999 resulting in gross proceeds to
the Company of at least $35,000,000, isssued pursuant to the terms of the
Warrant Agreement.
"control" means, with respect to any specified Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located in Boston,
Massachusetts.
"covenant defeasance" has the meaning set forth in Section 8.02.
"Cumulative EBITDA" means the cumulative Consolidated EBITDA of the
Company from and after the first day of the first fiscal quarter beginning after
the Issue Date to the end of the fiscal quarter immediately preceding the date
of determination ending not more than 135 days prior to the date of
determination, or, if such cumulative Consolidated EBITDA for such period is
negative, minus the amount by which such cumulative Consolidated EBITDA is less
than zero.
-7-
"Cumulative Interest Expense" means the aggregate amount of
Consolidated Interest Expense of the Company paid or accrued by the Company from
and after the first day of the first fiscal quarter beginning after the Issue
Date to the end of the fiscal quarter immediately preceding the date of
determination ending not more than 135 days prior to the date of determination.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or similar agreement or arrangement designed to protect the
Company or any Subsidiary of the Company against fluctuations in currency
values.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Determination Date" has the meaning set forth in the definition of
Leverage Ratio.
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the final maturity date of the Securities.
"Electronic Messaging Business" has the meaning set forth in Section
4.19.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A" (or higher) according to S&P or
Moody's at the time as of which any investment or rollover therein is made.
"Equity Offering" means an underwritten primary public offering of
Qualified Capital Stock of the Company pursuant to a registration statement
filed with and declared effective by the SEC in accordance with the Securities
Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Escrow Agent" means Fleet National Bank, as Escrow Agent pursuant to
the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated as of February 21,
1997, among the Company, Fleet National Bank, as Escrow Agent and Fleet National
Bank, as Trustee.
"Event of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
-8-
"Exchange Offer" means the exchange offer to be filed with the SEC
relating to the Exchange Securities pursuant to the Registration Rights
Agreement with the Initial Purchaser.
"Exchange Securities" has the meaning set forth in the preamble to
this Indenture.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between an informed and willing seller and an informed and willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transaction. Except as provided in the TIA, and except with respect to non-
cash Investments not exceeding $5,000,000, fair market value shall be determined
(I) with respect to any Asset Sale involving consideration of less than
$5,000,000, by management of the Company and (II) in all other cases (whether or
not involving an Asset Sale), by the Board of Directors acting in good faith and
shall be evidenced by a Board Resolution; provided, however, that if (A) the
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aggregate non-cash consideration to be received by the Company or any Restricted
Subsidiary from any Asset Sale shall reasonably be expected to exceed
$25,000,000 or (B) if the net worth of any Restricted Subsidiary to be
designated as an Unrestricted Subsidiary shall reasonably be expected to exceed
$25,000,000,then fair market value shall be determined by a nationally
recognized investment banking firm.
"Fax International Japan, Inc." means Fax International Japan, Inc., a
majority-owned subsidiary of the Company.
"FCC" means the Federal Communications Commission, as from time to
time constituted, or if at any time after the execution of this Indenture such
Commission is not existing and performing the applicable duties now assigned to
it, then the body or bodies performing such duties at such time.
"Final Maturity Date" means March 1, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable from time to
time and are consistently applied.
"Global Security" has the meaning set forth 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 virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part) (but if in part, only to the extent thereof); provided,
--------
however, that the term "guarantee" shall not include (A) endorsements for
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collection or deposit in the ordinary course of business and (B) guarantees
(other than guarantees of Indebtedness) by the Company in respect of assisting
one or more Subsidiaries in the ordinary course of their respective businesses,
including without limitation guarantees of trade obligations and operating
leases, on ordinary business terms. The term "guarantee" used as a verb has a
corresponding meaning.
-9-
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"incur" has the meaning set forth in Section 4.08; and "incurrence"
and "incurred" shall have meanings correlative to the foregoing.
"Indebtedness" means with respect to any Person, without duplication,
any liability of such Person or such Person's Restricted Subsidiaries (i) for
borrowed money, (ii) evidenced by bonds, debentures, notes or other similar
instruments, (iii) constituting Capitalized Lease Obligations, (iv) incurred or
assumed as the deferred purchase price of property or pursuant to conditional
sale obligations and title retention agreements (but excluding trade accounts
payable arising in the ordinary course of business), (v) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) for Indebtedness of others guaranteed by such Person, (vii)
for Interest Swap Obligations, (viii) for the higher of the voluntary
liquidation preference, involuntary liquidation preference, fixed redemption
price or repurchase price of all Disqualified Capital Stock and (ix) for
Indebtedness of any other Person of the type referred to in clauses (i) through
(viii) which is secured by any Lien on any property or asset of such first
referred to Person, whether or not such Indebtedness is assumed by such Person
or is not otherwise such Person's legal liability; provided, however, that if
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the obligations so secured have not been assumed by such Person or are otherwise
not such Person's legal liability, the amount of such Indebtedness for the
purposes of this definition shall be limited to the lesser of the amount of such
Indebtedness secured by such Lien or the fair market value of the assets or
property securing such Lien. The amount of Indebtedness of any Person at any
date shall be the outstanding principal amount of all unconditional obligations
described above, to the extent that such amount would be reflected on a balance
sheet prepared in accordance with GAAP, and the maximum liability at such date
of such Person for any contingent obligations described above. For purposes of
this Indenture, the issuance of any Warrants shall not constitute the incurrence
of Indebtedness.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Initial Purchaser" means ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., pursuant to the Purchase
Agreement dated February 14, 1997, between the Company and the Initial
Purchaser.
"Initial Securities" has the meaning set forth in the preamble to this
Indenture.
"Initial Warrants" means the warrants of the Company issued on the
Issue Date, initially to purchase 4,816,818 shares of Common Stock of the
Company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, with respect to any Security, the amount of all
interest accruing on such Security, including all interest accruing subsequent
to the occurrence of any events specified in Sections 6.01(f) and (g) or which
would have accrued but for any such event, whether or not such claims are
allowable under applicable law.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities, as set forth therein.
-10-
"Interest Swap Obligations" means the obligations of any Person under
any interest rate protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap or other interest rate hedge or
agreement.
"Investment" by any Person means any direct or indirect (i) loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property (valued at the fair market value thereof as
of the date of transfer) to others or payments for property or services for the
account or use of others, or otherwise), (ii) purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by any other Person (whether by merger, consolidation, amalgamation or
otherwise and whether or not purchased directly from the issuer of such
securities or evidences of Indebtedness) and (iii) guarantee or assumption of
the Indebtedness of any other Person (except for an assumption of Indebtedness
for which the assuming Person receives consideration with a fair market value at
least equal to the principal amount of the Indebtedness assumed). Investments
shall exclude extensions of trade credit and advances to customers and suppliers
to the extent made in the ordinary course of business on ordinary business
terms. The amount of any non-cash Investment shall be the fair market value of
such Investment, as determined conclusively in good faith by management of the
Company unless the fair market value of such Investment exceeds $5,000,000, in
which case the fair market value shall be determined conclusively in good faith
by the Board of Directors at the time such Investment is made. Notwithstanding
the foregoing, the purchase or acquisition of any securities of any other Person
to the extent effected with Qualified Capital Stock of the Company shall not be
deemed to be an Investment. The amount of any Investment shall not be adjusted
for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such Investment.
"Issue Date" means February 21, 1997.
"legal defeasance" has the meaning set forth in Section 8.02.
"Leverage Ratio" means, as to any Person, the ratio of (i) the
Consolidated Total Indebtedness of such Person as of the date of the transaction
or event giving rise to the need to calculate the Leverage Ratio (the
"Determination Date") on a consolidated basis in accordance with GAAP to (ii)
the product of (A) the Consolidated EBITDA of such Person for the full fiscal
quarter for which financial information is available ending immediately prior to
the Determination Date (such fiscal quarter, the "Measurement Period") and (B)
four.
For purposes of this definition, the Consolidated Total Indebtedness
of the Person as of the Determination Date shall be adjusted as if the
Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied on the first day of the
Measurement Period. For purposes of calculating Consolidated EBITDA of the
Company for the Measurement Period immediately prior to the relevant
Determination Date, (I) any Person that is a Restricted Subsidiary on such
Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such ratio) will be deemed to have been a Restricted Subsidiary
at all times during such Measurement Period, (II) any Person that is not a
Restricted Subsidiary on such Determination Date (or would cease to be a
Restricted Subsidiary on such Determination Date in connection with the
transaction that requires the determination of such ratio) will be deemed not to
have been a Restricted Subsidiary at any time during such Measurement Period and
(III) if the Company or any Restricted Subsidiary shall have in any manner (x)
acquired (including through an Asset Acquisition or the commencement of
activities constituting such operating business) or (y) disposed of (including
by way of an Asset Sale or the termination or discontinuance of activities
constituting such operating business) any operating business during the
Measurement Period or after the end of such Measurement Period and on or prior
to the Determination Date, such calculation
-11-
will be made on a pro forma basis in accordance with GAAP as if, in the case
--- -----
of an Assett Acquisition or the commencement of activities constituting such
operating business, all such transactions had been consummated on the first day
of such Measurement Period and, in the case of an Asset Sale or termination or
discontinuance of activities constituting such operating business, all such
transactions had been consummated prior to the first day of such Measurement
Period.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any option
or other agreement to sell, and any filing of or any agreement to give, any
security interest).
"Material Subsidiary" means, at any date of determination, any one or
more Restricted Subsidiaries that, (i) for the most recent fiscal year of the
Company accounted for more than 10% of the consolidated revenues of the Company
(exclusive of all Unrestricted 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 (exclusive of all Unrestricted Subsidiaries), all as set forth on the
most recently available consolidated financial statements of the Company and its
consolidated Restricted Subsidiaries for such fiscal year prepared in conformity
with GAAP.
"Maturity Date" means, with respect to any Security, the date on which
any principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Measurement Period" has the meaning set forth in the definition of
Leverage Ratio.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any Restricted Subsidiary from such
Asset Sale net of (i) reasonable out-of-pocket expenses and fees relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers' fees and costs reasonably incurred in preparation of any asset or
property for sale), (ii) taxes paid or reasonably estimated to be payable
(calculated based on the combined state, federal and foreign statutory tax rates
applicable to the Company or the Restricted Subsidiary consummating such Asset
Sale) and (iii) repayment of Indebtedness secured by assets subject to such
Asset Sale, (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary as a reserve, in accordance with GAAP against any
liabilities associated with such assets and retained by the Company or any
Restricted Subsidiary after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities related to
environmental matters and the after-tax cost of any indemnification payments
(fixed or contingent) attributable to the seller's indemnities to the purchaser
undertaken by the Company or any Restricted Subsidiary in connection with any
such Asset Sale (but excluding any payments which, by the terms of the
indemnities will not, under any circumstances, be made during the term of the
Securities) and (v) all distributions and other payments required to be made to
minority interests holders in Restricted Subsidiaries or joint ventures as a
result of such Asset Sale; provided, however, that if the instrument or
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agreement governing such Asset Sale requires the transferor to maintain a
portion of the purchase price in escrow (whether as a reserve for adjustment of
the purchase price or otherwise) or to provide for indemnification of the
transferee for specified liabilities in a maximum specified amount, the portion
of the cash or Cash Equivalents that is actually placed in escrow or segregated
and set aside by the transferor for such indemnification obligations shall not
be deemed to be Net Cash Proceeds until the
-12-
escrow terminates or the transferor ceases to segregate and set aside such
funds, in whole or in part, and then only to the extent of the proceeds released
from escrow to the transferor or that are no longer segregated and set aside by
the transferor.
"Offering Memorandum" means the Offering Memorandum dated February 14,
1997 pursuant to which the Securities were offered, and any supplement thereto.
"Officer" means the Chairman of the Board, the President, any
Executive Vice President, any Vice President, the Chief Financial Officer, the
Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company,
in form and substance satisfactory to the Trustee and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and substance
satisfactory to the Trustee, from legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company.
"Paying Agent" has the meaning set forth in Section 2.03, except that,
for the purposes of Section 4.12 and Section 4.13 and Articles Three and Eight,
the Paying Agent shall not be the Company or a Subsidiary of the Company or any
of their respective Affiliates.
"Payment Restriction" has the meaning set forth in Section 4.16.
"Permitted Holder" means any of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, any spouse or
lineal descendant thereof, any trust the beneficiaries of which are any of the
foregoing or any affiliate of any of the foregoing, and (ii) SingTel and its
affiliates.
"Permitted Indebtedness" means, without duplication, each of the
following:
(a) the Initial Securities and the Exchange Securities;
(b) Indebtedness of a Restricted Subsidiary of the Company owed to and
held by the Company or another Restricted Subsidiary of the Company, in
each case which is not subordinated in right of payment to any Indebtedness
of such Restricted Subsidiary, except that (x) any transfer of such
Indebtedness by the Company or a Restricted Subsidiary of the Company
(other than to the Company or to a Restricted Subsidiary of the Company)
and (y) the sale, transfer or other disposition by the Company or any
Restricted Subsidiary of Capital Stock of a Restricted Subsidiary of the
Company which is owed Indebtedness of another Restricted Subsidiary of the
Company such that it ceases to be a Restricted Subsidiary of the Company
shall, in each case, be an incurrence of Indebtedness by such Restricted
Subsidiary subject to the other provisions of Section 4.08.
(c) Refinancing Indebtedness;
(d) Interest Swap Obligations; provided, however, that such Interest
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Swap Obligations are entered into to protect the Company from fluctuations
in interest rates of its Indebtedness, to the extent the notional principal
amount of such Interest Swap Obligations do not exceed the principal amount
of the Indebtedness to which such Interest Swap Obligations relate;
-13-
(e) Indebtedness of the Company or any Restricted Subsidiary incurred
under Vendor Financing Arrangements in an aggregate principal amount at any
one time outstanding not to exceed the lesser of (x) $40,000,000 or (y)
100% of the cost of the goods purchased from the vendor;
(f) Indebtedness of Fax International Japan, Inc. not to exceed
$5,000,000 principal amount in the aggregate at any one time outstanding;
(g) Indebtedness incurred by the Company, not to exceed $25,000,000
principal amount in the aggregate at any one time outstanding; provided
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that such indebtedness is unsecured and subordinated, pursuant to a written
agreement (containing subordination terms which are at least as favorable
to Holders of the Securities as those set forth as Exhibit G to this
Indenture), to the Company's obligations under this Indenture and the
Securities;
(h) Indebtedness of the Company or any Restricted Subsidiary
represented by letters of credit for the account of the Company or such
Restricted Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with self-
insurance or similar requirements in the ordinary course of business
pursuant to ordinary business terms;
(i) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
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Indebtedness is extinguished within two business days of incurrence;
(j) Indebtedness outstanding on the Issue Date less any prepayments or
repayments in respect thereof including any indebtedness issued in lieu of
interest in respect of any indebtedness outstanding on the Issue Date;
(k) Acquired Indebtedness of any corporation that becomes a Restricted
Subsidiary after the Issue Date which Indebtedness is existing at the time
such corporation becomes a Restricted Subsidiary; provided, however, that
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(A) immediately after giving effect to such corporation becoming a
Restricted Subsidiary the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in accordance with the
Leverage Ratio of Section 4.08, (B) such Indebtedness is without recourse
to the Company or to any Restricted Subsidiary or to any of their
respective properties or assets other than the Person becoming a Restricted
Subsidiary or its properties and assets and (C) such Indebtedness was not
incurred as a result of or in connection with or in contemplation of such
entity becoming a Restricted Subsidiary;
(l) Indebtedness of the Company or any of its Restricted Subsidiaries
in an aggregate principal amount (or accreted value, as applicable) not to
exceed $15,000,000 as of the date of any incurrence; and
(m) Indebtedness of the Company not to exceed (A) the aggregate cash
proceeds received by the Company after the Issue Date from the sale or
issuance of Qualified Capital Stock less (B) the portion of such proceeds
----
utilized to make, or anticipated to be used to make, Restricted Payments or
Permitted Investments described in clauses (iv), (x) or (xi) of the
definition of "Permitted Investments", after the Issue Date; provided that
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(x) such Indebtedness shall have a final maturity which is later than
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the final maturity of the Securities and (y) the Weighted Average Life to
Maturity of such Indebtedness is greater than the Weighted Average Life to
Maturity of the Securities.
"Permitted Investment" means, without duplication, each of the
following:
(i) Investments by the Company or any Restricted Subsidiary of the
Company in any Restricted Subsidiary of the Company (whether existing on
the Issue Date or created thereafter) or any Person that after such
Investment and, as a result thereof, becomes a Restricted Subsidiary of the
Company and Investments in the Company by any Subsidiary of the Company;
(ii) Cash and Cash Equivalents;
(iii) Loans or advances to directors, officers and employees made
in the ordinary course of business;
(iv) Investments by the Company or any Subsidiary of the Company
for which the sole consideration provided is Qualified Capital Stock;
(v) Investments arising as a result of the receipt by the Company
or any Restricted Subsidiary of non-cash consideration for an Asset Sale
effected in compliance with Section 4.13;
(vi) Investments in an aggregate amount (with each such Investment
being valued as of the date made and without giving effect to subsequent
changes in value) not to exceed the aggregate net proceeds, including the
fair market value of property other than cash (as determined in good faith
by the Board of Directors), received by the Company after the Issue Date
from the issuance and sale of its Capital Stock (other than Disqualified
Stock) to a Person who is not a Restricted Subsidiary of the Company, or
from the issuance to a Person who is not a Restricted Subsidiary of the
Company of any options, warrants or other rights to acquire Capital Stock
of the Company (in each case, exclusive of any 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 the Stated Maturity of the
Securities, less the aggregate net proceeds used to make or committed to be
used to make any Restricted Payments or any Permitted Investments);
(vii) advances to customers made in the ordinary course of
business;
(viii) Investments in Currency Agreements and Interest Rate
Agreements;
(ix) Investments in evidences of Indebtedness, securities or other
property received by the Company or any Restricted Subsidiary from another
Person in connection with any bankruptcy proceedings or by reason of a
composition, restructuring or readjustment of debt or a reorganization of
such Person or as a result of foreclosure, perfection or enforcement of any
Lien;
(x) Investments in WorldVoice Inc. (or any successor thereof) in an
aggregate amount not to exceed (A) $5,000,000 and (B) an additional
$10,000,000 from and after April 1, 1997, in each case on a basis
consistent with the letters of intent relating thereto in effect as of the
Closing Date; and
(xi) other Investments (with each such Investment being valued as
of the date made and without giving effect to subsequent changes in value)
in an aggregate amount not to exceed $15,000,000
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at any one time outstanding; provided that not more than $5,000,000 of the
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Investments pursuant to this clause (xi) is invested directly or
indirectly within any one country.
"Permitted Liens" means, without duplication, each of the following:
(i) Liens in favor of the Trustee in its capacity as trustee for
the Holders;
(ii) Liens existing on the Issue Date as in effect on such date;
(iii) Liens on property of the Company or a Restricted Subsidiary
securing Indebtedness incurred pursuant to (A) the Leverage Ratio to the
extent the Indebtedness is incurred pursuant to a Vendor Financing
Agreement, (B) clauses (e), (f) or (l) of Permitted Indebtedness, and (C)
Liens on Capital Stock of Unrestricted Subsidiaries;
(iv) Liens on property existing on the date of acquisition thereof;
provided, however, that such Liens are not incurred as a result of, or in
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connection with or in anticipation of, such transaction and such Liens
relate solely to the property so acquired;
(v) Liens to secure the payment of all or a part of the purchase
price or construction cost of acquired or constructed property which is to
be used by the Company exclusively in the Electronic Messaging Business,
including related activities and services, after the Issue Date; provided,
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however, that the Indebtedness secured by such Liens shall not exceed 100%
-------
of the cost of such property and such Liens shall not extend to any other
property or assets of the Company or of any Restricted Subsidiary other
than the property or assets so acquired;
(vi) Liens for taxes, assessments and governmental charges to the
extent not required to be paid under this Indenture;
(vii) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens to the
extent not required to be paid under this Indenture;
(viii) pledges or deposits to secure lease obligations or
nondelinquent obligations under workers' compensation, unemployment
insurance or similar legislation (other than ERISA);
(ix) Liens to secure the performance of public statutory
obligations that are not delinquent, performance bonds or other obligations
of a like nature (other than for borrowed money), in each case incurred in
the ordinary course of business pursuant to ordinary business terms;
(x) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances incurred
in the ordinary course of business pursuant to ordinary business terms not
interfering in any material respect with the business of the Company or any
Restricted Subsidiary;
(xi) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
letters of credit or bankers' acceptances issued or created for the account
of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods in the ordinary course of business pursuant to
ordinary business terms;
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(xii) judgment and attachment Liens not giving rise to an Event of
Default;
(xiii) leases or subleases granted to others in the ordinary
course of business pursuant to ordinary business terms and consistent with
past practice not interfering in any material respect with the business of
the Company or any Restricted Subsidiary;
(xiv) any interest or title of a lessor in the property subject to
any lease, whether characterized as capitalized or operating other than any
such interest or title resulting from or arising out of a default by the
Company or any Restricted Subsidiary of its obligations under such lease;
(xv) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases of personal property
that are otherwise permitted under this Indenture and under which the
Company or any Restricted Subsidiary is a lessee;
(xvi) Liens with respect to Acquired Indebtedness incurred in
accordance with Section 4.08; provided, however, that (A) such Liens
-------- -------
secured such Acquired Indebtedness at the time of and prior to the
incurrence of such Acquired Indebtedness by the Company and were not
granted as a result of, in connection with, or in anticipation of, the
incurrence of such Acquired Indebtedness by the Company and (B) such Liens
do not extend to or cover any property or assets of the Company or of any
Restricted Subsidiary other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company and are no more favorable to the lienholders
than those securing the Acquired Indebtedness prior to the incurrence of
such Acquired Indebtedness by the Company;
(xvii) Liens to secure Capitalized Lease Obligations to the extent
arising from transactions consummated in compliance with Section 4.08 and
Section 4.18; provided, however, that such Liens do not extend to or cover
-------- -------
any property or assets of the Company or of any Restricted Subsidiary,
other than the property or assets subject to such Capitalized Lease
Obligation;
(xviii) any Lien to secure the refinancing of any Indebtedness
described in the foregoing clauses; provided, however, that to the extent
-------- -------
any such clause limits the amount secured or the asset subject to such
Liens, no refinancing shall increase the assets subject to such Liens or
the amount secured thereby beyond the assets or amounts set forth in such
clauses;
(xix) Liens securing Indebtedness under the Steelcase Financing
Documents as in effect on the Issue Date and replacements thereof as
permitted by the Steelcase Financing Documents as in effect on the Issue
Date; and
(xx) any Lien arising by operation of law.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Security" has the meaning set forth in Section 2.01.
"Predecessor Security" means, with respect to any particular Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.07 hereof in exchange
for a
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mutilated Security or in lieu of a lost, destroyed or stolen Security
shall be deemed to evidence the same debt as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"principal" means, with respect to any debt security, the principal of
the security plus, when appropriate, the premium, if any, on the security and
any interest on overdue principal.
"Private Placement Legend" means the first paragraph of the legend
initially set forth on the Securities in the form set forth on Exhibit A.
"Productive Assets" means assets of a kind used or usable by the
Company and the Restricted Subsidiaries in the Electronic Messaging Business or
businesses reasonably related thereto.
"pro forma" means, with respect to any calculation made or required to
--- -----
be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company in consultation with its independent public
accountants.
"Purchase Agreement" means the Purchase Agreement dated February 14,
1997 between the Company and the Initial Purchaser.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Investor" or "QIB" has the meaning specified
in Rule 144A under the Securities Act.
"Redemption Date" means, with respect to any Security to be redeemed,
the date fixed by the Company for such redemption pursuant to this Indenture and
the Securities.
"Redemption Price" means, with respect to any Security to be redeemed,
the price fixed for such redemption pursuant to the terms of this Indenture and
the Securities.
"refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part; "refinanced" and "refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any refinancing by the Company of
Indebtedness of the Company or of any Restricted Subsidiaries existing on the
Issue Date or incurred in accordance with Section 4.08 (other than pursuant to
clauses (b), (d), (e), (f), (h) and (i) of the definition of Permitted
Indebtedness); provided, however, that such Indebtedness so incurred to
-------- -------
refinance such other Indebtedness (the "Existing Indebtedness") (1) is not in an
aggregate principal amount as of the date of the consummation of such proposed
refinancing in excess of (or if such Indebtedness being incurred to refinance
the Existing Indebtedness is issued with original issue discount, at an original
issue price not in excess of) the sum of (i) the aggregate principal amount
outstanding of the Existing Indebtedness (provided that (a) if such Existing
Indebtedness was issued with original issue discount, in excess of the accreted
amount of such Existing Indebtedness (as
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determined in accordance with GAAP) as of the date of such proposed refinancing,
(b) if such Existing Indebtedness was incurred pursuant to a revolving credit
facility or any other agreement providing a commitment for subsequent
borrowings, with a maximum commitment under the agreement governing the
Indebtedness proposed to be incurred not in excess of the maximum commitment
amount under such Existing Indebtedness and (c) any amount of such Existing
Indebtedness owned or held by the Company or any of its Subsidiaries shall not
be deemed to be outstanding for the purposes hereof) as of the date of such
proposed refinancing, plus (ii) the amount of any reasonable premium paid
----
with respect to such Existing Indebtedness and plus (iii) the amount of
----
reasonable expenses incurred by the Company in connection with such refinancing
and (2) does not have (I) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Existing Indebtedness or (II) a
final maturity earlier than the final maturity of the Existing Indebtedness;
provided, further, however, that (y) if such Existing
-------- ------- -------
Indebtedness is subordinate or junior to the Securities, then such Indebtedness
proposed to be incurred to refinance the Existing Indebtedness shall be
subordinate to the Securities at least to the same extent and in the same manner
as the Existing Indebtedness and (z) such Indebtedness proposed to be incurred
to refinance the Existing Indebtedness is not incurred more than three months
prior to the complete retirement or defeasance of the Existing Indebtedness with
the proceeds thereof. With respect to any Refinancing of Indebtedness under the
SingTel Credit Agreement and the SingTel Equipment Financing Agreement, in
addition to the foregoing, no Indebtedness incurred to refinance such SingTel
Indebtedness shall provide for any payment of interest or other amounts thereon
prior to the times at which, and not in excess of the amount of, interest and
other amounts are payable on the SingTel Indebtedness.
"Registrar" has the meaning set forth in Section 2.03.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated as of February 21, 1997 between the Company and the Initial
Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payment" has the meaning set forth in Section 4.09.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to request
--------
and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Restricted Subsidiary" means any present or future Subsidiary of the
Company which, as of the determination date, is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person from whom funds have
been or are to be advanced by such Person on the security of such property.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, or if at any time after the execution of this Indenture such
Commission is not existing and performing the applicable duties now assigned to
it, then the body or bodies performing such duties at such time.
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"Securities" means the Initial Securities and the Exchange Securities
that are issued under this Indenture, as amended or supplemented from time to
time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"SingTel" means Singapore Telecommunications Limited, its successors
and assigns.
"SingTel Credit Agreement" means the Credit Agreement dated as of
April 10, 1995 between the Company and SingTel N.V. (as amended) as in effect on
the Issue Date.
"SingTel Documents" means each of the agreements between SingTel or
any of its affiliates, on the one hand, and the Company or any Restricted
Subsidiary, on the other hand, in each case as in effect on the Closing Date.
"SingTel Equipment Financing Agreement" means the Term Loan Agreement
-- Equipment dated as of April 10, 1995 between the Company and SingTel N.V. (as
amended) as in effect on the Issue Date.
"S&P" means Standard & Poor's Corporation, and its successors.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Steelcase Financing Documents" means certain secured loan and lease
financing arrangements between the Company and Steelcase Financial Services
Inc., as in effect on the Issue Date.
"Subsidiary," with respect to any Person, means (i) any corporation of
which at least a majority of the outstanding Voting Stock shall at the time be
owned, directly or indirectly, by such Person or (ii) any other Person of which
at least a majority of the outstanding Voting Stock is at the time, directly or
indirectly, owned by such Person.
"Surviving Entity" has the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the Issue Date (other than with respect to
Section 9.03); provided, however, that in the event the Trust Indenture
-------- -------
Act of 1939 is amended after such date, "TIA" means, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
"Trading Day" means with respect to a securities exchange or automated
quotation system, a day on which such exchange or system is open for a full day
of trading.
"Trust Officer" means any officer in the Corporate Trust Department of
the Trustee 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 knowledge of and familiarity with
the particular subject.
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"Trustee" means the party named as such in this Indenture until a
successor replaces such party (or any previous successor) in accordance with the
provisions of this Indenture, and thereafter means such successor.
"Units" means those securities of the Company offered pursuant to the
Offering Memorandum; each Unit consists of one Security (each at $1,000
principal amount) and one warrant to initially purchase 27.524674 shares of
Common Stock.
"Unrestricted Subsidiary" means a Subsidiary of the Company so
designated by a resolution adopted by the Board of Directors in accordance with
Section 4.15.
"U.S. Government Securities" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) 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, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
obligation or a specific payment of principal of or interest on any such U.S.
Government obligation held by such custodian for the account of the holder of
such 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 principal
of or interest on the U.S. Government obligation evidenced by such depository
receipt.
"Vendor Financing Arrangements" means any Indebtedness (including
Indebtedness under any credit facility entered into with any vendor or supplier
or any financial institution acting on behalf of such vendor or supplier);
provided that such Indebtedness is incurred solely for the purpose of financing
--------
the cost (including the cost of design, development, improvement, construction
or integration) of assets used or usable in the Electronic Messaging Business.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.
"Warrants" means the Initial Warrants and the Contingent Warrants.
"Warrant Agent" means Fleet National Bank, as Warrant Agent pursuant
to the Warrant Agreement.
"Warrant Agreement" means the Warrant Agreement dated as of February
21, 1997 between the Company and Fleet National Bank, as Warrant Agent.
"Warrant Shares" means shares of Common Stock of the Company issuable
upon exercise of the Initial Warrants and the Contingent Warrants pursuant to
the terms of the Warrant Agreement.
"Warrant Shares Registration Rights Agreement" means that certain
Warrant Shares Registration Rights Agreement dated as of February 21, 1997
between the Company and the Initial Purchaser.
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"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or Preferred Stock at any date, the number of years obtained by
dividing (a) the then outstanding aggregate principal amount or liquidation
preference of such Indebtedness or Preferred Stock into (b) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal or liquidation preference, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest one-
twelfth) which will elapse between such date and the making of such payment.
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
(unless expressly excluded herefrom). The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC;
----------
"indenture securities" means the Securities;
--------------------
"indenture security holder" means a Securityholder or Holder;
-------------------------
"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 in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
1.03. Rules of Construction.
---------------------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1. a term has the meaning assigned to it;
2. words in the singular include the plural, and words in the plural
include the singular;
3. "or" is not exclusive;
4. provisions apply to successive events and transactions;
5. all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
-22-
6. the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
7. all references to $ or dollars shall refer to the lawful currency
of the United States of America.
ARTICLE TWO
THE SECURITIES
2.01. Forms and Dating.
----------------
The Initial Securities and the Trustee's certificate of authentication
thereon shall be in substantially the form of Exhibit A hereto. The Exchange
Securities and the Trustee's certificate of authentication thereon shall be in
substantially the form of Exhibit B hereto. The Securities may have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any applicable law or with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution thereof.
The Securities shall be issuable only in registered form without coupons and
only in principal denominations of $1,000 and integral multiples thereof.
The definitive Securities shall be printed, typewritten, 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. 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 and Exhibit B shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Securities in registered
form, substantially in the form set forth in Exhibit A, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and shall bear the legend
set forth on Exhibit C (the "Global Security"). 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,
as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Securities,
when permitted under Regulation S, in registered form in substantially the form
set forth in Exhibit A (the "Offshore Physical Securities"). Securities offered
and sold to institutional "accredited investors" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) shall be issued, and Securities
offered and sold in reliance on Rule 144A may be issued, in the form of
permanent certificated Securities in registered form, in substantially the form
set forth in Exhibit A (the "U.S. Physical
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Securities"). The Offshore Physical Securities and the U.S. Physical Securities
are sometimes collectively herein referred to as the "Physical Securities."
2.02. Execution and Authentication.
----------------------------
Two Officers shall execute the Securities on behalf of the Company by
either manual or facsimile signature. The Company's seal, if any, may be
impressed, affixed, imprinted or reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security or at any time
thereafter, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Initial Securities for original issue
in an aggregate principal amount not to exceed $175,000,000 upon receipt of an
Officers' Certificate signed by two Officers of the Company directing the
Trustee to authenticate the Initial Securities and certifying that all
conditions precedent to the issuance of the Initial Securities contained herein
have been complied with. Upon a written order of the Company signed by two
Officers, the Trustee shall authenticate the Exchange Securities in an aggregate
principal amount not to exceed $175,000,000 for issuance in exchange for Initial
Securities previously issued pursuant to an exchange offer registered under the
Securities Act. The aggregate principal amount of Securities outstanding at any
time may not exceed $175,000,000 except as provided in Section 2.07.
With the prior written approval of the Company, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, 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 agent. Such authenticating agent shall have the same
rights as the Trustee in any dealings hereunder with the Company or with any of
the Company's Affiliates.
2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which shall be located
in the Borough of Manhattan, The City of New York, State of New York) where
Securities may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan, The City of New York, State of New York) where Securities may be
presented for payment of principal, premium, if any, and interest (the "Paying
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. The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent. Except
as otherwise expressly provided in this Indenture, the Company or any Affiliate
thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Registrar or Paying Agent or agent for service of
-24-
notices and demands. The Company shall notify the Trustee of the name and
address of any such Registrar or Paying Agent. If the Company fails to maintain
a Registrar, Paying Agent or agent for service of notices and demands, or fails
to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.08.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Securities.
2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
or interest on, the Securities (whether such money has been distributed to it by
the Company or any other obligor on the Securities), and the Company (or any
other obligor on the Securities) and the Paying Agent shall notify the Trustee
of any default by the Company (or any other obligor on the Securities) in making
any such payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to distribute 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 default in the payment of the principal of or
interest on the Securities, 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 distributed. Upon doing so, the Paying Agent (other than an obligor on
the Securities) shall have no further liability for the money so paid over to
the Trustee.
2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
2.06. Transfer and Exchange.
---------------------
When Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
-------- -------
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any transfer, exchange or
redemption, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.07, 2.10, 3.06, 4.12, 4.13 or
9.05). The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such
-25-
mailing and (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Security being redeemed in part.
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial interest
in the Global Security shall be required to be reflected in a book-entry system.
2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Paying Agent or Registrar from any loss which any of
them may suffer if a Security is replaced. The Company or the Trustee may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security, including reasonable fees and expenses of counsel. Every replacement
Security is an additional obligation of the Company.
In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable within one year, the
Company in its discretion may, subject to compliance with the foregoing
conditions, instead of issuing a new Security, pay such Security.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, lost, destroyed or wrongfully taken Securities.
2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
---- ----
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or a Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date, and is not prohibited from paying such cash or
U.S. Government Obligations to the Holders of such Securities pursuant to the
terms of this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them shall cease to accrue.
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2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Affiliates shall be disregarded, except that, for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities that the Trustee knows or
has reason to know are so owned shall be disregarded.
2.10. Temporary Securities.
--------------------
Until definitive Securities are prepared and 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 variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
promptly cancel and, at the written direction of the Company, shall dispose of
all Securities surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation. If
the Company shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
2.12. Defaulted Interest.
------------------
If the Company defaults on a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the persons who are Holders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 15 days before such special record date, the Company
shall mail to the Trustee and to each Holder a notice that states the special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
2.13. CUSIP Number.
------------
The Company in issuing the Securities may use a "CUSIP" number (if
then generally in use), and if so, the Trustee may use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
--------
however, that any such notice may state that no representation is made as to the
-------
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the
Trustee of any change in the CUSIP number.
-27-
2.14. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on, or before, each Interest
Payment Date and Maturity Date, the Company shall deposit, or cause to be
deposited, with the Trustee or Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date or Maturity
Date, as the case may be.
2.15 Restrictive Legends.
-------------------
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") on the face thereof until after the third anniversary of the Issue
Date, unless otherwise agreed by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A PROMULGATED UNDER THE SECURITIES ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT WITHIN THREE YEARS (OR SUCH SHORTER PERIOD AS MAY THEN BE
REQUIRED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER THEREOF OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A PROMULGATED
UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHED (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY, (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
PROMULGATED UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 PROMULGATED UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS (OR SUCH SHORTER
PERIOD AS MAY THEN BE REQUIRED BY RULE 144(k) UNDER THE SECURITIES
ACT) AFTER THE ORIGINAL ISSUANCE OF THIS
-28-
SECURITY, IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, WRITTEN LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Each Global Security shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH 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 2.17 OF THE INDENTURE.
2.16. Book-Entry Provisions for Global Security.
-----------------------------------------
(a) The Global Security initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 2.15.
-29-
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 the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any Agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any Agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of the Global Security shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Security may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depositary and the provisions of Section 2.17. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the 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 depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depositary to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) 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 the entire Global Security to
beneficial owners pursuant to paragraph (b), 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 constituting a Restricted Security delivered
in exchange for an interest in the Global Security pursuant to paragraph (b) or
(c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth in Section 2.15.
(f) The Holder of the 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.
2.17. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
---------------------------------------------------------------
U.S. Persons. The following provisions shall apply with respect to the
------------
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor that is not a QIB or to any
Non-U.S. Person:
-30-
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after the third
anniversary of the Issue Date (provided, however, that neither the Company
-------- -------
nor any Affiliate of the Company has held any beneficial interest in such
Security, or portion thereof, at any time on or prior to the third
anniversary of the Issue Date) or (y) (1) in the case of a transfer to an
Institutional Accredited Investor that is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit E hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and (y)
written instructions given in accordance with the Depositary's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
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 (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Global Security, upon receipt by the
Registrar of written instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement
-31-
Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the requested transfer is after the
third anniversary of the Issue Date (provided, however, that neither the Company
-------- -------
nor any Affiliate of the Company has held any beneficial interest in such
Security, or portion thereof, at any time prior to or on the third anniversary
of the Issue Date), or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee 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.
(d) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
(e) Transfers of Securities Held by Affiliates. Any certificate (i)
------------------------------------------
evidencing a Security that has been transferred to an Affiliate of the Company
within three years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered in
respect thereof, for so long as such Security is held by such Affiliate, or (ii)
evidencing a Security that has been acquired from an Affiliate (other than by an
Affiliate) in a transaction or a chain of transactions not involving any public
offering, shall, until three years after the last date on which the Company or
any Affiliate of the Company was an owner of such Security, in each case, bear a
legend in substantially the following form, unless otherwise agreed by the
Company (with written notice thereof to the Trustee):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A PROMULGATED UNDER THE SECURITIES ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE SECURITIES ACT)
(AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN
THREE YEARS AFTER THE LAST DATE AS OF WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS AN OWNER OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY, EXCEPT (A) TO THE ISSUER THEREOF, OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A PROMULGATED UNDER THE SECURITIES ACT, (C) TO
AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHED (OR
-32-
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE OR
REGISTRAR), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 PROMULGATED UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
PROMULGATED UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER
THE LAST DATE AS OF WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER
WAS AN OWNER OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS,
WRITTEN LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S PROMULGATED UNDER THE
SECURITIES ACT.
2.18. Liquidated Damages Under Registration Rights Agreement.
------------------------------------------------------
Under certain circumstances, the Company shall be obligated to pay
certain additional interest as liquidated damages ("Additional Interest") to the
Holders, all as set forth in Section 4 of the Registration Rights Agreement.
The terms thereof are hereby incorporated herein by reference.
ARTICLE THREE
REDEMPTION OF SECURITIES
3.01. Notices to the Trustee.
----------------------
If the Company elects to redeem Securities pursuant to Paragraph 2(a)
or 2(b) of the Securities, it shall notify the Trustee in writing of the
Redemption Date and principal amount of Securities to be redeemed.
-33-
The Company shall notify the Trustee by an Officers' Certificate,
stating that such redemption will comply with the provisions hereof and of the
Securities, of any redemption at least 45 days before the Redemption Date.
3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If less than all the Securities are to be redeemed at any time, the
particular Securities or portions thereof to be redeemed shall be selected from
the outstanding Securities not previously called for redemption pro rata, by lot
or by such other method as the Trustee considers to be fair and appropriate;
provided, however, that if the Securities are redeemed in part pursuant to
-------- -------
Paragraph 2(b) of the Securities, the Trustee shall select the Securities to be
redeemed by prorating, as nearly as may be, the principal amount of Securities
to be redeemed among the Holders of the Securities in proportion to the
principal amount of Securities registered in their respective names. In any
proration pursuant to this Section, the Trustee shall make such adjustments,
reallocations and eliminations as it shall deem proper to the end that the
principal amount of Securities so prorated shall be $1,000 or a multiple
thereof, by increasing or decreasing or eliminating the amount which would be
allocable to any Holder on the basis of exact proportion by an amount not
exceeding $1,000. The Trustee in its discretion may determine the particular
Securities (if there are more than one) registered in the name of any Holder
which are to be redeemed, in whole or in part. No Securities of a principal
amount of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
3.03. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at the address of such Holder
appearing in the Security register maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of the principal and accrued
interest, if any, to be paid;
(c) 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
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(d) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of such
Security to be redeemed and that on and after the
-34-
Redemption Date, upon surrender for cancellation of such original Security
to the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and the name and address of
the Paying Agent;
(f) the CUSIP number, if any, relating to such Securities, but no
representation is made as to the correctness or accuracy of any such CUSIP
numbers; and
(g) the paragraph of the Securities pursuant to which the Securities
are being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company.
3.04. 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 to the Paying Agent, such Securities called for redemption shall be
paid at the Redemption Price plus accrued and unpaid interest, if any, to the
Redemption Date, but interest installments whose maturity is on or prior to such
Redemption Date will be payable on the relevant Interest Payment Dates to the
Holders of record at the close of business on the relevant record dates referred
to in the Securities.
3.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Paying Agent an amount of money in same day funds sufficient to pay the
Redemption Price of, and accrued and unpaid interest, if any, on, all the
Securities or portions thereof which are to be redeemed on that date.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue, on and after the applicable
Redemption Date, whether or not such Securities are presented for payment. If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal, premium, if any, and, to the extent lawful,
accrued interest thereon, shall, until paid, bear interest from the Redemption
Date at the rate provided in the Securities.
3.06. Securities Redeemed or Purchased in Part.
----------------------------------------
Upon surrender to the Paying Agent of a Security which is to be
redeemed in part, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not
redeemed.
-35-
ARTICLE FOUR
COVENANTS
4.01. Payment of Securities.
---------------------
The Company shall pay, or cause to be paid, the principal of and
interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. An installment of the principal 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 thereof) holds on
that date money designated and set aside for and sufficient to pay the
installment in a timely manner and is not prohibited from paying such money to
the Holders of the Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate and in
the manner provided in the Securities; it shall pay interest on overdue
installments of interest at the same rate and in the same manner, to the extent
lawful.
4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency 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 office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 11.02.
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;
provided, however, that no such designation or rescission shall in any manner
-------- -------
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. 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 office of the Trustee
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Window #2 in the Borough of ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as such office of the Company in accordance with this
Section 4.02.
4.03. Corporate Existence.
-------------------
Subject to Article Five, the Company shall do or cause to be done all
things necessary to and will cause each of the Restricted Subsidiaries to,
preserve and keep in full force and effect the corporate or partnership
existence and rights (charter and statutory), licenses and/or franchises of the
Company and each of the Restricted Subsidiaries; provided, however, that neither
-------- -------
the Company nor any of the Restricted Subsidiaries shall be required to preserve
any such rights, licenses or franchises if the Board of Directors shall
reasonably determine that (x) the preservation thereof is no longer desirable in
the conduct of the business of the Company and the Restricted Subsidiaries taken
as a whole and (y) the loss thereof is not materially adverse to either the
-36-
Company and the Restricted Subsidiaries taken as a whole or to the ability of
the Company to otherwise satisfy its obligations hereunder.
4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of the Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
the Restricted Subsidiaries, and (b) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Company or any Restricted Subsidiary of the Company; provided, however, 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
promptly instituted and diligently conducted and which stay the forfeiture of
any property or assets of the Company and the Restricted Subsidiaries and for
which adequate provision has been made or where the failure to effect such
payment or discharge is not adverse in any material respect to the Company.
4.05. Maintenance of Properties; Insurance; Books and Records;
--------------------------------------------------------
Compliance with Law.
-------------------
(a) The Company shall, and shall cause each of the Restricted
Subsidiaries to, cause all properties and assets to be maintained and kept in
good condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and shall cause to be made all necessary
repairs, renewals, replacements, additions, betterments and improvements
thereto, as shall be reasonably necessary for the proper conduct of its
business; provided, however, that nothing in this Section 4.05(a) shall prevent
-------- -------
the Company or any of the Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties or assets if such
discontinuance is, in the judgment of the Board of Directors or such Restricted
Subsidiary, desirable in the conduct of its business and if such discontinuance
is not materially adverse to either the Company and the Restricted Subsidiaries
taken as a whole or the ability of the Company to otherwise satisfy its
obligations hereunder.
(b) The Company shall, and shall cause each of the Restricted
Subsidiaries to, maintain with financially sound and reputable insurers such
insurance as may be required by law (other than with respect to any
environmental impairment liability insurance not commercially available) and
such other insurance to such extent and against such hazards and liabilities, as
is customarily maintained by companies similarly situated (which may include
self-insurance in the same form as is customarily maintained by companies
similarly situated).
(c) The Company shall, and shall cause each of the Restricted
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all business and financial transactions of the
Company and each Restricted Subsidiary of the Company and reflect on its
financial statements adequate accruals and appropriations to reserves, all in
accordance with GAAP consistently applied to the Company and the Restricted
Subsidiaries taken as a whole.
(d) The Company shall and shall cause each of the Restricted
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
condition (financial or otherwise) of the Company and the Restricted
Subsidiaries taken as a whole.
-37-
4.06. Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee within 60 days after the
end of each of the Company's first three fiscal quarters and 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 in the performance by the Company
of its obligations under this Indenture or the Escrow Agreement. The Company
shall also notify the Trustee within ten days of any event which is, or after
notice or lapse of time or both would become, an Event of Default under this
Indenture or the Escrow Agreement by the Company. The certificate shall
describe any such Default, Event of Default or default and its status. The
first certificate to be delivered pursuant to this Section 4.06(a) shall be for
the first fiscal quarter of the Company beginning after the Issue Date. The
Company shall also deliver within 90 days after the end of the Company's fiscal
year a certificate to the Trustee from its principal executive, financial or
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture or the Escrow Agreement, such
compliance to be determined without regard to any period of grace or requirement
of notice provided herein or therein.
(b) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Company's independent
certified public accountants stating that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters and indicating whether or not, in the course of their review,
anything came to their attention that caused them to believe that the Company
failed to comply with such terms (it being understood that such audit
examination shall not be directed primarily toward obtaining knowledge of such
noncompliance).
4.07. SEC Reports and Other Information.
---------------------------------
The Company shall deliver to the Trustee, within 15 days after it
files them with the Commission, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act within the time periods prescribed under such rules
and regulations. Notwithstanding that the Company may not be subject to, or
required to remain subject to, the reporting requirements of Section 13 or 15(d)
of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Company shall continue to file
with the Commission and provide to the Trustee such annual and interim reports
on Forms 10-K and 10-Q, respectively, as the Company would be required to file
were it subject to such reporting requirements within the time periods
prescribed under such rules and regulations. The Company shall not be obligated
to file any such reports with the Commission if the Commission does not permit
such filings but shall remain obligated to provide such reports to the Trustee
and the Holders within the periods of time referred to above. The Company shall
provide to any Holder of Securities any information reasonably requested by such
Holder concerning the Company (including financial statements) consistent with
the requirements of Rule 144A(d)(4) promulgated under the Securities Act
necessary in order to permit such Holder to sell or transfer Securities in
accordance with Rule 144A promulgated under the Securities Act. In addition,
the Company shall cause its annual reports to shareholders and any quarterly or
other financial reports furnished by it to shareholders generally to be filed
with the Trustee and mailed at the expense of the Company no later than the date
such materials are mailed or made available to the Company's shareholders, to
the Holders at their addresses as set forth in the register of Securities
maintained by the Registrar. Upon qualification of this Indenture under the
TIA, the Company also shall comply with the provisions of TIA (S)(S) 314(a).
-38-
4.08. Limitation on Incurrence of Additional Indebtedness.
---------------------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume, guarantee, acquire
or become liable, contingently or otherwise, for (collectively "incur") any
Indebtedness other than Permitted Indebtedness. Notwithstanding the foregoing
limitations, the Company may incur Indebtedness (including, without limitation,
any Acquired Indebtedness) and Restricted Subsidiaries may incur Indebtedness
under Vendor Financing Arrangements if after giving pro forma effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
therefrom the Company's Leverage Ratio would be less than 5.0 to 1; provided
--------
that if prior to March 1, 1999, the Company has not consummated a primary
underwritten public offering (excluding any offering pursuant to Form S-8 under
the Securities Act or any other publicly registered offering pursuant to the
Securities Act pertaining to an issuance of shares of Common Stock or securities
exercisable therefor under any benefit plan, employee compensation plan, or
employee or director stock purchase plan) of Common Stock of the Company
pursuant to an effective registration statement under the Securities Act
resulting in gross proceeds to the Company of at least $35.0 million, such ratio
shall be reduced to 4.5 to 1 until such time as the Company completes such an
offering.
(b) Any Indebtedness of an entity existing at the time it becomes a
Restricted Subsidiary (whether by merger, consolidation, acquisition of Capital
Stock or otherwise) or is merged with or into the Company or any Restricted
Subsidiary shall be deemed to be incurred as of the date such entity becomes a
Restricted Subsidiary or the date of such merger.
(c) The Company shall not, directly or indirectly, incur any
Indebtedness that is subordinate to any other Indebtedness of the Company unless
such Indebtedness is also expressly subordinated to the Securities; provided,
--------
however, that no Indebtedness of the Company shall be deemed to be subordinate
-------
to any other Indebtedness of the Company solely because such other Indebtedness
is secured. Accretion of accreted value and accrual of interest shall not be
deemed to be an "incurrence" for purposes of this Section 4.08, nor shall the
payment of interest in the form of additional Indebtedness.
4.09. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly:
(a) declare or pay any dividend or make any distribution (other than
dividends or distributions payable in Qualified Capital Stock of the
Company or payable to any Restricted Subsidiary of the Company) on shares
of Capital Stock of the Company;
(b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or of any Restricted Subsidiary not owned or
held by the Company or a Restricted Subsidiary, or any warrants, rights or
options to acquire shares of any class of such Capital Stock, other than
(x) the exchange of such Capital Stock or any warrants, rights or options
to acquire shares of any class of such Capital Stock for Qualified Capital
Stock of the Company or warrants, rights or options to acquire Qualified
Capital Stock of the Company or (y) to the extent that such Capital Stock
or warrants, rights or options are owned by the Company or any Restricted
Subsidiary of the Company;
-39-
(c) make any principal payment on, or purchase, decrease, redeem,
prepay, defease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness that is subordinate or junior in right of payment
to the Securities (other than any such Indebtedness owing to the Company or
any Restricted Subsidiary of the Company); or
(d) make any Investment (other than any Permitted Investments) after
the Issue Date;
(each of the foregoing prohibited actions set forth in clauses (a), (b), (c) and
(d) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto (i) a Default or
an Event of Default under this Indenture shall have occurred and be continuing
or would result therefrom, (ii) the Company is not, at such time, able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with the Leverage Ratio set forth in Section 4.08, or (iii) the
aggregate amount of Restricted Payments made subsequent to the Issue Date (the
amount expended for such purposes, if other than in cash, being the fair market
value of such property as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution)
exceeds or would exceed the sum of:
(A) Cumulative EBITDA since the Issue Date less the product of 2.0
times Cumulative Interest Expense since the Issue Date, plus
----
(B) 100% of the aggregate net cash proceeds received by the Company
from any Person (other than a Restricted Subsidiary) from the issuance and
sale subsequent to the Issue Date of Qualified Capital Stock of the Company
(excluding net cash proceeds attributable to the equity securities
comprising a part of the Units), plus
----
(C) without duplication of any amounts included in the immediately
preceding subclause (B), 100% of the aggregate net proceeds (determined
pursuant to the penultimate paragraph of this covenant) received by the
Company from the issuance and sale (other than to any Restricted
Subsidiary) of any Qualified Capital Stock of the Company upon the
conversion of, or in exchange for, any Indebtedness of the Company or any
Restricted Subsidiary (other than Indebtedness under the SingTel Credit
Agreement and SingTel Equipment Financing Agreement and any other
subordinated Indebtedness outstanding immediately after the Issue Date),
plus
----
(D) an amount equal to the aggregate amount of cash dividends,
repayments of loans or advances in cash or other assets constituting
Productive Assets and valued at the fair market value thereof, or other
transfers of cash, in each case to the Company or to any Restricted
Subsidiary of the Company from Unrestricted Subsidiaries (but without
duplication of any such amount included in calculating Cumulative EBITDA of
the Company), or the amount resulting from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (in each case valued as provided in
Section 4.15), not to exceed, in the case of any Unrestricted Subsidiary,
the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary and which was treated as a
Restricted Payment under this Indenture, plus
----
(E) without duplication of the immediately preceding subclause (D), an
amount equal to (i) the lesser of the cost or net cash proceeds or other
assets constituting Productive Assets and valued at the fair market value
thereof received upon the sale or other disposition of any Investment made
after the Issue Date which had been treated as a Restricted Payment and
(ii) the cost of any Investment then
-40-
outstanding in any Person (other than an Unrestricted Subsidiary) at the
time of a transaction whereby such Person becomes a Restricted Subsidiary
(but, in each case, without duplication of any amount included in
calculating Cumulative EBITDA of the Company).
No amount determined under subclause (D) or (E) above shall be less
than zero for purposes of this Section 4.09.
Notwithstanding the foregoing, these provisions do not prohibit:
(1) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if the dividend or
distribution would have been permitted on the date of declaration; or
(2) the acquisition of Capital Stock of the Company or any Restricted
Subsidiary or warrants, options or other rights to acquire such Capital
Stock through the application of the net proceeds of any capital
contribution (other than from a Restricted Subsidiary) or a substantially
concurrent sale for cash (other than to a Restricted Subsidiary) of
Qualified Capital Stock of the Company or warrants, options or other rights
to acquire Qualified Capital Stock of the Company; or
(3) the acquisition of Indebtedness of the Company that is subordinate
or junior in right of payment to the Securities, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company (or warrants,
options or other rights to acquire Qualified Capital Stock of the Company)
or for Indebtedness of the Company which is subordinate or junior in right
of payment to the Securities, at least to the extent that the Indebtedness
being acquired is subordinated to the Securities, and has a Weighted
Average Life to Maturity no less than that of the Indebtedness being
exchanged or (ii) through the application of the net proceeds of any
capital contribution or a substantially concurrent sale for cash (other
than to or from a Restricted Subsidiary) of Qualified Capital Stock of the
Company (or warrants, options or other rights to acquire Qualified Capital
Stock of the Company) or Refinancing Indebtedness; or
(4) the repurchase of Capital Stock of the Company (including options,
warrants or other rights to acquire such Capital Stock) from employees or
former employees of the Company or any Restricted Subsidiary for
consideration which, when added to all loans made pursuant to clause (5)
below of this paragraph during the same fiscal year and then outstanding
(determined as provided in clause (5) below) does not exceed $500,000 in
the aggregate in any fiscal year plus the aggregate cash proceeds received
by the Company during such fiscal year from the sale of Capital Stock to
employees of the Company or any Restricted Subsidiary; or
(5) the making of loans and advances to employees of the Company or
any Restricted Subsidiary in an aggregate amount at any time outstanding
(including as outstanding any such loan or advance written off or forgiven)
which, when added to the aggregate consideration paid pursuant to clause
(4) of this paragraph during the same fiscal year, does not exceed $500,000
in any fiscal year plus the aggregate cash proceeds received by the Company
during such fiscal year from the sale of Capital Stock to employees of the
Company or any Restricted Subsidiary; or
(6) the redemption, repurchase or other acquisition of shares of
Capital Stock in satisfaction of indemnification or similar claims arising
under any merger, asset purchase, stock
-41-
purchase, contribution, joint venture, consolidation or similar acquisition
agreement pursuant to which such shares of Capital Stock were issued; or
(7) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of any Restricted Subsidiary from any person
other than an Affiliate; or
(8) the repurchase of the Warrants or Warrant Shares pursuant to the
terms of the Warrant Agreement (as in effect on the Issue Date);
provided, however, that in the case of the immediately preceding clauses (2),
-------- -------
(3), (4), (5) and (6), and in the case of clauses (vi), (x) and (xi) of the
definition of "Permitted Investment", no Default or Event of Default shall have
occurred or be continuing at the time of such Restricted Payment or Permitted
Investment, as the case may be, or would occur as a result thereof. For
purposes of clause (3) above, Indebtedness that is "subordinate or junior in
right of payment to the Securities" will qualify under subclauses (i) and (ii)
thereof if such Indebtedness provides that interest and other amounts are not
payable thereon prior to the times at which, and in the amounts of, interest and
other amounts may be paid upon the Indebtedness being acquired. Fur purposes of
clause (4) above, the proceeds of Capital Stock sold to employees shall not be
duplicative of any such proceeds credited under clause (B) above.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date, amounts expended pursuant to clauses (1), (2), (3)
(but only to the extent that Indebtedness is acquired in exchange for, or with
the net proceeds from, the issuance of Qualified Capital Stock of the Company or
warrants, options or other rights to acquire Qualified Capital Stock of the
Company), (4), (5) and (6) of the immediately preceding paragraph and clauses
(vi), (x) (except, if at the time of such Investment, WorldVoice Inc. shall be a
Restricted Subsidiary) and (xi) of the definition of "Permitted Investment,"
shall be included in such calculation.
For purposes of calculating the net proceeds received by the Company
from the issuance or sale of its Capital Stock either upon the conversion of, or
exchange for, Indebtedness of the Company or any Restricted Subsidiary, such
amount will be deemed to be an amount equal to the difference of (a) the sum of
(i) the principal amount or accreted value (whichever is less) of such
Indebtedness on the date of such conversion or exchange and (ii) the additional
cash consideration, if any, received by the Company upon such conversion or
exchange, less any payment on account of fractional shares, minus (b) all
-----
expenses incurred in connection with such issuance or sale. In addition, for
purposes of calculating the net proceeds received by the Company from the
issuance or sale of its Capital Stock upon the exercise of any options or
warrants of the Company, such amount will be deemed to be an amount equal to the
difference of (a) the additional cash consideration, if any, received by the
Company upon such exercise, minus (b) all expenses incurred in connection with
-----
such issuance or sale.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.09 were computed, which calculation may
be based on the Company's latest financial statements.
4.10. Limitation on Preferred Stock of Restricted Subsidiaries.
--------------------------------------------------------
The Company shall not permit any Restricted Subsidiary to, directly or
indirectly, issue any Preferred Stock (other than to the Company or to a
Restricted Subsidiary of the Company) or permit any Person
-42-
(other than the Company or a Subsidiary of the Company) to own any Preferred
Stock of any Restricted Subsidiary; provided, however, that this Section 4.10
-------- -------
shall not prevent the issuance of or be violated by reason of (i) Preferred
Stock of Restricted Subsidiaries to the extent that such Preferred Stock is
outstanding on the Issue Date; (ii) Preferred Stock issued by a Person prior to
the time that (a) such Person becomes a Restricted Subsidiary, (b) such Person
merges with or into a Restricted Subsidiary or (c) another Person merges with or
into such Person in a transaction in which such Person becomes a
Restricted Subsidiary, in each case only if such Preferred Stock was not issued
in anticipation of or in connection with or as a result of such transaction; and
(iii) Preferred Stock issued in exchange for, or the proceeds of which are used
to refinance, Preferred Stock referred to in the foregoing clauses (i) or (ii)
(other than Preferred Stock which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable) is redeemable at
the option of the holder thereof or is otherwise redeemable, pursuant to sinking
fund obligations or otherwise, prior to that date of redemption or maturity of
the Preferred Stock being so refinanced); provided, further, however, that (a)
-------- ------- -------
the liquidation value of such Preferred Stock so issued shall not exceed the
liquidation value of the Preferred Stock so refinanced and (b) the Preferred
Stock so issued (I) shall have a stated maturity not earlier than the stated
maturity of the Preferred Stock being refinanced and (II) shall have a Weighted
Average Life to Maturity equal to or greater than the remaining Weighted Average
Life to Maturity of the Preferred Stock being refinanced.
4.11. Limitation on Liens.
-------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Liens
upon any of their respective property or assets or on any income or profits
therefrom, or assign or otherwise convey any right to receive income or profits
thereon, whether owned on the date of this Indenture or thereafter acquired,
unless (x) in the case of Liens securing Indebtedness subordinate to the
Securities, the Securities are secured by a valid, perfected Lien on such
property, assets or proceeds that is senior in priority to such Liens and (y) in
all other cases, the Securities are equally and ratably secured; provided,
--------
however, that the foregoing shall not prohibit or restrict, and the Company need
-------
not equally and ratably secure the Securities as a result of, Permitted Liens.
4.12. Change of Control.
-----------------
Upon the occurrence of a Change of Control (the date of such
occurrence, the "Change of Control Date"), the Company shall notify the Holders
of Securities in writing of such occurrence and shall make an offer to
repurchase (the "Change of Control Offer") on a Business Day not less than 30
days nor more than 45 days (other than as may be required by law) following the
date notice is mailed (but in no event less than three Business Days after the
Change of Control Offer has expired) (the "Change of Control Payment Date"), all
of the Securities then outstanding at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
a Change of Control Payment Date.
Notice of a Change of Control Offer shall be mailed by the Company, by
first class mail, not later than the 30th day after the Change of Control Date
to each Holder of Securities at its last registered address with a copy to the
Trustee and the Paying Agent (such copy to be accompanied by an Officers'
Certificate stating that a Change of Control has occurred). The Change of
Control Offer shall remain open from the time of mailing for at least 20
Business Days. The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.12 and that all Securities or portions thereof validly tendered
into the Change of Control Offer and not withdrawn will be accepted for
payment;
-43-
(b) the purchase price (including the amount of accrued and unpaid
interest, if any) for each Security, the Change of Control Payment Date and
the date on which the Change of Control Offer expires;
(c) that any Security or portion thereof not tendered for payment will
continue to accrue interest, in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Security or portion thereof accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(e) that Holders electing to have Securities or portions thereof
purchased pursuant to a Change of Control Offer will be required to
surrender their Securities, properly endorsed for transfer, to the Paying
Agent at the address specified in the notice prior to 5:00 p.m., New York
City time, on the date the Change of Control Offer expires and must
complete any form of letter of transmittal and such other customary
documents as proposed by the Company and reasonably acceptable to the
Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the date the Change of Control Offer expires, a tested telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities the Holder delivered for purchase, the
Security certificate number (if any) and a statement that such Holder is
withdrawing its election to have such Securities or portions thereof
purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(h) the instructions that Holders must follow in order to tender their
Securities; and
(i) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not then permitted to
file any such reports with the SEC, the comparable reports prepared
pursuant to Section 4.07), a description of material developments in the
Company's business, information with respect to pro forma historical
--- -----
financial information after giving effect to such Change of Control and
such other information concerning the circumstances and relevant facts
regarding such Change of Control Offer as would be material to a Holder of
Securities in connection with the decision of such Holder as to whether or
not it should tender Securities pursuant to the Change of Control Offer.
On the date the Change of Control Offer expires, the Company shall
accept for payment Securities or portions thereof validly tendered pursuant to
the Change of Control Offer. Prior to 11 a.m. on the second Business Day
immediately prior to the Change of Control Payment Date, the Company shall
deliver to the Trustee the Securities so accepted together with an Officers'
Certificate setting forth the Securities or portions thereof tendered to and
accepted for payment by the Company. Prior to 11:00 a.m. on the Change of
Control Payment Date, the Company shall (i) deposit with the Paying Agent money,
in immediately available funds, sufficient to pay the purchase price of all
Securities or portions thereof so tendered and accepted and (ii) the Paying
Agent shall promptly mail or deliver to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a
-44-
new Security equal in principal amount to any unpurchased portion of the
Security surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer not later than the first
Business Day following the Change of Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1 of the
Exchange Act, and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities pursuant to a Change of Control Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to a Change of Control Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
Portions of Securities tendered for purchase shall be in principal
amounts equal to $1,000 or integral multiples thereof.
4.13. Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Sale unless:
(i) the Company or the applicable Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed;
(ii) at least 80% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, from such Asset Sale is cash
or Cash Equivalents and is received at the time of such disposition;
provided that, for purposes of this Section 4.13 "cash" shall include the
--------
amount of any liabilities of the Company or a Restricted Subsidiary that
are assumed by the transferee of assets in such Asset Sale (excluding any
liability incurred in connection with or in anticipation of such Asset
Sale), but only to the extent that such assumption is without further
recourse to the Company and the Restricted Subsidiaries; and
(iii) upon the consummation of an Asset Sale, the Company applies,
or causes such Restricted Subsidiary to apply, or enters into, or causes
such Restricted Subsidiary to enter into, a binding commitment to apply,
any Net Cash Proceeds within 270 days of receipt thereof (it being
understood that any binding commitment to so apply must be consummated
within 360 days of such receipt) either (A) to reinvest in Productive
Assets, or (B) to repay or prepay Indebtedness (other than non-recourse
Indebtedness) of any Restricted Subsidiary, or (C) to repay or prepay any
Indebtedness of the Company that is secured by a Lien permitted to be
incurred pursuant to Section 4.11, or (D) to the extent not applied
pursuant to the immediately preceding clauses (A), (B) or (C), pro rata
(based on the aggregate principal amount of the Securities and such other
Indebtedness then outstanding) to (I) the repayment or prepayment of any
Indebtedness of the Company (other than the Securities and any Indebtedness
subordinated to the Securities) that is at the time redeemable or
prepayable (and is so redeemed or prepaid) and (II) purchase Securities
tendered to the Company for purchase at a price equal to 100% of the
principal amount thereof, plus in each case accrued and unpaid interest, if
any, to the date of purchase pursuant to an offer to purchase made by the
Company as set forth below (an "Asset Sale Offer"); provided, however, that
-------- -------
if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary, as the case may be, in connection with any Asset
Sale is
-45-
converted into or sold or otherwise disposed of for cash, then such
conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this clause (iii); provided, further, however, that the Company may
-------- ------- -------
defer making an Asset Sale Offer until the aggregate Net Cash Proceeds from
Asset Sales to be applied equal or exceed $5,000,000.
Each notice of an Asset Sale Offer shall be mailed, by first class
mail, by the Company to all Holders of Securities as shown on the applicable
register of holders of Securities, with a copy to the Trustee and the Paying
Agent (such copy to be accompanied by an Officers' Certificate stating that all
conditions precedent contained herein to such Asset Sale Offer have been
complied with). The notice, which shall govern the terms of the Asset Sale
Offer, shall include such disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section
4.13;
(2) the purchase price (including the amount of accrued interest, if
any) and the purchase date, which shall be not less than 30 days nor more
than 45 days from the date such notice is mailed (but in no event less than
three Business Days after the Asset Sale Offer has expired) (the "Asset
Sale Purchase Date"), except as otherwise required by law;
(3) the amount of Net Cash Proceeds available to repurchase
Securities;
(4) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest in accordance with the terms
thereof;
(5) that, unless the Company shall default in the payment of the Net
Cash Proceeds, any Security or portion thereof accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after the
Asset Sale Purchase Date;
(6) that Holders electing to have Securities purchased in whole or in
part in integral multiples of $1,000 in principal amount, pursuant to an
Asset Sale Offer will be required to surrender their Securities to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the date the Asset Sale Offer expires and must complete
any form of letter of transmittal proposed by the Company and reasonably
acceptable to the Trustee and the Paying Agent;
(7) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
date the Asset Sale Offer expires, a telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
Securities the Holder delivered for purchase, the Security certificate
number and a statement that such Holder is withdrawing its election to have
such Securities or portions thereof purchased;
(8) that if the aggregate principal amount of Securities properly
tendered by Holders exceeds the Net Cash Proceeds available to repurchase
Securities in the Asset Sale Offer, the Company shall repurchase Securities
on a pro rata basis (based upon the aggregate principal amount tendered by
each Holder, using the procedures set forth in Section 3.02);
(9) that Holders whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered;
-46-
(10) the instructions that Holders must follow in order to tender
their Securities; and
(11) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not permitted to file
any such reports with the Commission, the comparable reports prepared
pursuant to Section 4.07), a description of material developments in the
Company's business, information with respect to pro forma historical
--- -----
financial information after giving effect to such Asset Sale and Asset Sale
Offer and such other information concerning the circumstances and relevant
facts regarding such Asset Sale Offer as would be material to a Holder of
Securities in connection with the decision of such Holder as to whether or
not it should tender Securities pursuant to the Asset Sale Offer.
Portions of Securities tendered for purchase shall be in principal amounts equal
to $1,000 or integral multiples thereof.
On the date the Asset Sale Offer expires, the Company shall accept for
payment, on a pro rata basis, Securities or portions thereof tendered pursuant
to the Asset Sale Offer. Prior to 11 a.m. on the second Business Day
immediately prior to the Asset Sale Purchase Date, the Company shall deliver to
the Trustee the Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof tendered to and accepted for
payment by the Company. Prior to 11:00 a.m. on the Asset Sale Purchase Date, the
Company shall (i) deposit with the Paying Agent money, in immediately available
funds, in an amount sufficient to pay the Net Cash Proceeds of all Securities or
portions thereof so tendered and accepted and (ii) the Paying Agent shall
promptly mail or deliver to Holders of Securities so accepted payment in an
amount equal to the Net Cash Proceeds, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company will publicly announce the results of the
Asset Sale Offer not later than the first Business Day following the Asset Sale
Purchase Date.
To the extent that the aggregate principal amount of Securities
tendered pursuant to an Asset Sale Offer is less than the amount of Net Cash
Proceeds available therefor, the Company may use any remaining portion of such
available Net Cash Proceeds not required to fund the repurchase of tendered
Securities for any purposes otherwise permitted by this Indenture. Upon
consummation of any Asset Sale Offer, the amount of Net Cash Proceeds from the
Asset Sale in question to be the subject of future Asset Sale Offers shall be
deemed to be zero. For purposes of this Section 4.13, the Trustee shall act as
Paying Agent.
The Company shall comply with the requirements of Rule 14e-1 of the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to an Asset Sale Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to an Asset Sale Offer, the Company shall comply with the provisions of
such rule and be deemed not to have breached its obligations relating to such
Asset Sale Offer by virtue thereof.
4.14. Limitation on Transactions with Affiliates.
------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into or amend any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property, the
guaranteeing of any Indebtedness or the rendering of any service) with or for
the
-47-
benefit of any of its Affiliates (an "Affiliate Transaction") other than any
Affiliate Transaction or Affiliate Transactions that are on terms that are no
less favorable to the Company than those that might reasonably have been
obtained at such time in a comparable transaction by the Company on an arm's-
length basis from a Person that is not an Affiliate; provided, however, that for
-------- -------
a transaction or series of related transactions involving value of $1,000,000 or
more, such determination shall be made in good faith by a majority of the
disinterested members of the Board of Directors, if any; provided, further,
-------- -------
however, that for a transaction or series of related transactions involving
-------
value of $5,000,000 or more, the Board of Directors shall have received, prior
to the consummation thereof, an opinion from a nationally recognized investment
banking, accounting or appraisal firm that such Affiliate Transaction is fair,
from a financial point of view, to the Holders of the Securities.
The foregoing provisions shall not prohibit or restrict (a)
transactions between the Company and a Restricted Subsidiary of the Company or
among Restricted Subsidiaries of the Company, (b) Restricted Payments and
Permitted Investments made in accordance with Section 4.09, (c) the payment of
reasonable and customary fees to directors of the Company who are not employees
of the Company and the payment of reasonable and customary compensation for
director and Board of Director observer fees, meeting expenses, insurance
premiums and indemnities, to the extent permitted by law, (d) making loans or
advances to officers, employees or consultants of the Company and the Restricted
Subsidiaries (including travel and moving expenses) in the ordinary course of
business for bona fide business purposes of the Company or such Restricted
---------
Subsidiary (e) any employment or option agreement entered into by the Company or
any Restricted Subsidiary in the ordinary course of business that is approved by
the Board of Directors, (f) Affiliate Transactions in existence, or for which
rights or agreements are in existence, on the Issue Date, in each case as in
effect on the Issue Date and as amended thereafter as long as such amendment is
not materially adverse to the interests of the Holders of the Securities as
determined in good faith by the Board of Directors, (g) the issuance of stock
options (and shares of stock upon the exercise thereof) pursuant to any stock
option plan approved by the Board of Directors and shareholders of the Company
and (h) Affiliate Transactions pursuant to or contemplated by the SingTel
Documents, in each case as in effect on the Issue Date and as amended thereafter
as long as such amendment is not materially adverse to the interests of the
Holders of the Securities as determined in good faith by the Board of Directors.
4.15. Limitation on Restricted and Unrestricted Subsidiaries.
------------------------------------------------------
The Board of Directors may (subject to the penultimate paragraph of
this Section 4.15), if no Default or Event of Default shall have occurred and be
continuing or would arise therefrom, designate an Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that (i) any such redesignation
-------- -------
shall be deemed to be an incurrence as of the date of such redesignation by the
Company and the Restricted Subsidiaries of the Indebtedness (if any) of such
redesignated Subsidiary for purposes of Section 4.08; and (ii) unless such
redesignated Subsidiary shall not have any Indebtedness outstanding, other than
Indebtedness which would be Permitted Indebtedness, no such designation shall be
permitted if immediately after giving effect to such redesignation and the
incurrence of any such additional Indebtedness, the Company could not incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to
the Leverage Ratio set forth in Section 4.08. The Board of Directors also may,
if no Default or Event of Default shall have occurred and be continuing or would
arise therefrom, designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if (a) such designation is at that time permitted under Section 4.09
and (b) immediately after giving effect to such designation, the Company could
incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the Leverage Ratio set forth in Section 4.08. Any such designation
by the Board of Directors shall be evidenced to the Trustee by the filing with
the Trustee of a Board Resolution giving effect to such designation or
redesignation and an Officers' Certificate certifying that such designation or
redesignation complied with the foregoing conditions and setting forth in
reasonable detail the underlying calculations.
-48-
For purposes of the covenant described in Section 4.09, (x) an
"Investment" shall be deemed to have been made at the time any Restricted
Subsidiary is designated as an Unrestricted Subsidiary in an amount
(proportionate to the Company's equity interest in such Subsidiary) equal to the
net worth of such Restricted Subsidiary at the time that such Restricted
Subsidiary is designated as an Unrestricted Subsidiary; (y) at any date the
aggregate of all Restricted Payments made as Investments since the Issue Date
shall exclude and be reduced by an amount (proportionate to the Company's equity
interest in such Subsidiary) equal to (A) the amount of Investments in any
Unrestricted Subsidiary that becomes a Restricted Subsidiary after the date of
such Investment or (B) the net worth of any Unrestricted Subsidiary at the time
that such Unrestricted Subsidiary is designated a Restricted Subsidiary, not to
exceed, in the case of any such redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the amount of Investments previously made by the Company
and the Restricted Subsidiaries in such Unrestricted Subsidiary that were
treated as Restricted Payments under this Indenture (in each case (x) and (y)
"net worth" to be calculated based upon the fair market value of the assets of
such Subsidiary as of any such date of designation); and (z) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer.
Notwithstanding the foregoing, the Board of Directors may not
designate any Subsidiary of the Company to be an Unrestricted Subsidiary if,
after such designation, (A) the Company or any other Restricted Subsidiary (i)
provides credit support for, or a guarantee of, any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (ii) is directly or indirectly liable for any Indebtedness of
such Subsidiary, (B) a default with respect to any Indebtedness of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its final scheduled
maturity or (C) such Subsidiary owns any Capital Stock of, or owns or holds any
Lien on any property of, any Restricted Subsidiary which is not a Subsidiary of
the Subsidiary to be so designated.
Subsidiaries of the Company that are not designated by the Board of
Directors as Restricted or Unrestricted Subsidiaries will be deemed to be
Restricted Subsidiaries. Notwithstanding any provisions of this covenant, all
Subsidiaries of an Unrestricted Subsidiary will be Unrestricted Subsidiaries.
4.16. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
----------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to: (a) pay dividends or make any other distributions on its Capital
Stock, (b) make loans or advances or to pay any Indebtedness or other obligation
owed to the Company or any Restricted Subsidiary, (c) guarantee any Indebtedness
or any other obligation of the Company or any Restricted Subsidiary, or (d)
transfer any of its property or assets to the Company or any Restricted
Subsidiary (each of the foregoing restrictions, a "Payment Restriction"), except
for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Indenture, (iii) customary non-assignment provisions
of any lease or other agreement of the Company or any Restricted Subsidiary,
(iv) any instrument governing Acquired Indebtedness, which encumbrance or
restriction was not incurred in connection with, as a result of, or in
anticipation of the incurrence of such Indebtedness and is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, (v) instruments governing
Indebtedness of Restricted Subsidiaries in respect of Vendor Financing
Arrangements incurred in accordance with the terms of this Indenture, (vi)
agreements existing on the Issue Date as such agreements are
-49-
from time to time in effect; provided, however, that any amendments or
-------- -------
modifications of such agreements which affect the encumbrances or
restrictions of the types subject to this covenant shall not result in such
encumbrances or restrictions being less favorable to the Company in any material
respect, as determined in good faith by the Board of Directors, than the
provisions as in effect before giving effect to the respective amendment or
modification, (vii) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or incurred pursuant to an
agreement described in clause (iv), (v) or (vi) of this Section 4.16; provided,
--------
however, that the provisions relating to such encumbrance or
-------
restriction contained in any such refinancing, replacement or substitution
agreement are not less favorable to the Company in any material respect as
determined in good faith by the Board of Directors than the provisions relating
to such encumbrance or restriction contained in agreements referred to in such
clause (iv), (v) or (vi) of this Section 4.16, (viii) Liens permitted under this
Indenture to the extent that such Liens restrict the transfer of the asset or
assets subject thereto, and (ix) with respect to clause (d) above, purchase
money obligations for property acquired in the ordinary course of business
pursuant to ordinary business terms.
4.17. Escrow Account.
--------------
The Company shall, on the date of this Indenture, enter into the
Escrow Agreement and, pursuant thereto, shall place the Initial Escrow Amount
(as defined in the Escrow Agreement) in the Escrow Account held by the Escrow
Agent for the benefit of the Holders of the Securities and the Trustee.
4.18. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into any Sale and Leaseback Transaction,
except that the Company or any Restricted Subsidiary may enter into a Sale and
Leaseback Transaction if (i) after giving effect to such Sale and Leaseback
Transaction (the Indebtedness thereunder being equivalent to the Attributable
Value thereof) (A) the Company could incur at least $1.00 of additional
Indebtedness in compliance with the Leverage Ratio set forth in Section 4.08,
provided that in the case of a Restricted Subsidiary, the Indebtedness incurred
--------
in such Sale and Leaseback Transaction was Indebtedness in respect of a Vendor
Financing Arrangement, or (B) the Indebtedness incurred in such Sale and
Leaseback could have been incurred as (and shall be deemed incurred as)
Permitted Indebtedness under clauses (e), (f), or (g) thereof, and (ii) the Sale
and Leaseback Transaction is effected in accordance with the requirements of
Section 4.13.
4.19. Limitation on Line of Business.
------------------------------
For so long as any Securities are outstanding, the Company shall, and
shall cause any Restricted Subsidiary to, engage in all material respects in the
business of (i) communications services, including facsimile transmission and
delivery services and voice, video or data transmission and delivery services,
(ii) utilizing their facilities for any commercial purpose permitted by
applicable regulation, and (iii) evaluating, participating or pursuing any other
activity or opportunity that is ancillary or related to those identified in (i)
or (ii) above (including pursuant to acquisitions of entities or divisions or
lines of business of entities in the foregoing business) (together, the
"Electronic Messaging Business"); notwithstanding the foregoing, however,
ownership by the Company or any Restricted Subsidiary of stock in any
Unrestricted Subsidiary, or any other entity which is not a Restricted
Subsidiary, shall not be deemed to violate this covenant.
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4.20. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which would prohibit or forgive the Company 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 which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
4.21. Further Assurances to the Trustee.
---------------------------------
The Company shall, upon the request of the Trustee, execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the provisions of this
Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
5.01. When Company May Merge, etc.
---------------------------
The Company shall not, in any transaction or series of transactions,
merge or consolidate with or into, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets as an
entirety to, any Person or Persons, and the Company shall not permit any
Restricted Subsidiary to enter into any such transaction or series of related
transactions if such transaction or series of transactions, in the aggregate,
would result in a direct or indirect sale, assignment, conveyance, transfer,
lease or other disposition of all or substantially all of the properties and
assets of the Company or the Company and the Restricted Subsidiaries, taken as a
whole, to any other Person or Persons, unless at the time of and after giving
effect thereto (i) either (x) if the transaction or series of transactions is a
merger or consolidation involving the Company, the Company shall be the
surviving Person of such merger or consolidation, or (y) the Person formed by
such consolidation or into which the Company is merged or to which the
properties and assets of the Company or such Restricted Subsidiary, as the case
may be, are sold, assigned, conveyed, transferred, leased or otherwise disposed
of (including, with respect to the Restricted Subsidiaries, by merger or
consolidation) (any such surviving Person or Persons of such merger or
consolidation or to whom such sale, assignment, conveyance, lease or other
disposition has been made being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, all the obligations of the Company under
the Securities, this Indenture and, if then in effect, the Registration Rights
Agreement, and the Escrow Agreement, and in each case, this Indenture and, if
then in effect, the Registration Rights Agreement, and the Escrow Agreement
shall remain in full force and effect; (ii) immediately before and immediately
after giving effect to such transaction or series of transactions on a pro forma
--- -----
basis (including, without limitation, any Indebtedness incurred or anticipated
to be incurred in connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing and the Company or the
-51-
Surviving Entity, as the case may be, after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
--- -----
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the Leverage Ratio set forth in Section 4.08; and (iii) immediately
after giving effect to such transaction or series of transactions on a pro forma
--- -----
basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), the Consolidated Net Worth of the Company or the
Surviving Entity, as the case may be, is at least equal to the Consolidated Net
Worth of the Company immediately before such transaction or series of
transactions.
In connection with any transaction contemplated by this Section 5.01,
the Company shall deliver, or cause to be delivered, to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance reasonably
satisfactory to the Trustee, each stating that such consolidation, merger,
transfer, lease, assignment or other disposition and the supplemental indenture
in respect thereof complies with the requirements under this Indenture.
For all purposes of this Indenture and the Securities (including the
provisions of this Section 5.01 and Section 5.02 and the covenants described in
Sections 4.08, 4.11 and 4.15), Subsidiaries of any Surviving Entity will, upon
such transaction or series of transactions, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to the covenant described in
Section 4.15 and all Indebtedness, and all Liens on property or assets, of the
Company and the Restricted Subsidiaries immediately prior to such transaction or
series of transactions shall be deemed to have been incurred upon such
transaction or series of transactions.
5.02. Successor Substituted.
---------------------
Upon any consolidation or merger or any sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof in which the Company is
not the continuing corporation, the successor corporation formed by such a
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture, the Securities, and if then
in effect, the Registration Rights Agreement; provided, however, that solely for
-------- -------
purposes of calculating Cumulative EBITDA in connection with Section 4.09, any
such successor Person shall only be deemed to have succeeded to and be
substituted for the Company with respect to periods subsequent to the effective
time of such merger, consolidation or sale, assignment, conveyance, transfer,
lease or other disposition of assets.
-52-
ARTICLE SIX
REMEDIES
6.01. Events of Default.
-----------------
An "Event of Default" means any of the following events:
(a) the failure to pay interest on the Securities when the same become
due and payable and the Default continues for a period of 30 days;
(b) the failure to pay the principal of any Security when such
principal becomes due and payable, at maturity, upon acceleration,
redemption, pursuant to a required offer to purchase or otherwise;
(c) a default in the observance or performance of any other covenant
or agreement contained in the Securities, this Indenture or the Escrow
Agreement which Default continues for a period of 60 days after the Company
receives written notice thereof from the Trustee specifying the default and
stating that such notice is a "Notice of Default" hereunder or the Company
and the Trustee receive such notice from Holders of at least 25% in
aggregate principal amount of the outstanding Securities;
(d) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Material Subsidiary
(or the payment of which is guaranteed by the Company or any Material
Subsidiary), whether such Indebtedness or guarantee now exists, or is
created after the Issue Date, which default (i) is caused by a failure to
pay principal, at the final stated maturity thereof, on such Indebtedness
(which failure continues beyond any applicable grace period) (a "Payment
Default") or (ii) results in the acceleration of such Indebtedness prior to
its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5,000,000 or more and with
respect to such clauses (i) and (ii) such Payment Default or acceleration
has not been rescinded or annulled or such Indebtedness discharged or paid
in full in cash within 20 days;
(e) one or more judgments in an aggregate amount in excess of
$5,000,000 (unless covered by insurance by a reputable insurer as to which
the insurer has acknowledged coverage) being rendered against the Company
or any of its Material Subsidiaries and such judgments remain undischarged
or unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable;
(f) the Company or any Material Subsidiary of the Company pursuant to
or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
-53-
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors;
or
(v) shall generally not pay its debts when such debts become due
or shall admit in writing its inability to pay its debts generally;
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Material Subsidiary
of the Company in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any Material
Subsidiary of the Company for all or substantially all of its
properties, or
(iii) orders the liquidation of the Company or any Material
Subsidiary of the Company,
and in each case the order or decree remains unstayed and in effect for 60
days; or
(h) any holder or holders of at least $5,000,000 in aggregate
principal amount of Indebtedness of the Company or any Material Subsidiary
shall foreclose upon assets of the Company or any Material Subsidiary
having an aggregate fair market value, individually or in the aggregate, of
at least $5,000,000 or shall have otherwise taken ownership of such assets
pursuant to any right under applicable law or applicable security documents
in lieu of foreclosure.
6.02. Acceleration.
------------
Upon the happening of any Event of Default (other than as specified in
Section 6.01(f) or (g) with respect to the Company), the Trustee, by written
notice to the Company, or the Holders of not less than 25% in principal amount
of the Securities then outstanding, by written notice to the Trustee and the
Company, in each case specifying the respective Event of Default and that it is
a "notice of acceleration" (the "Acceleration Notice"), may declare all unpaid
principal amount of and accrued but unpaid interest, if any, on all the
Securities to be due and payable immediately, upon which declaration, the same
shall become immediately due and payable, notwithstanding anything else
contained in the Securities or this Indenture to the contrary. If an Event of
Default specified in Section 6.01(f) or (g) with respect to the Company occurs
and is continuing, then such amount 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 of Securities.
At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph but before a judgment or
decree of money due in respect of the Securities has been obtained, the Holders
of not less than a majority in principal amount of the Securities then
outstanding by written notice to the Company and the Trustee, may rescind such
declaration 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
under this Indenture 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 of and premium, if
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any, on any Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue principal at the rate provided for in the
Securities which has become due otherwise than by such declaration of
acceleration; (b) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and (c) all Events of Default, other than
the non-payment of principal of, premium, if any, and interest on the Securities
that have become due solely by such declaration of acceleration, have been cured
or waived.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right subsequent therein.
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 the principal of, premium, if any, or interest on the Securities or
to enforce the performance of any provision of the Securities or this Indenture.
All rights of action and claims under this Indenture or the Securities
may be enforced by the Trustee even if it does not possess any of the Securities
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
6.04. Waiver of Past Defaults.
-----------------------
Prior to the declaration of acceleration of the Securities, the
Holders of not less than a majority in principal amount of the Securities by
notice to the Trustee may, on behalf of the Holders of all the Securities, waive
any existing Default or Event of Default and its consequences under this
Indenture, except a Default or Event of Default specified in Section 6.01(a) or
(b) or in respect of any provision hereof which cannot be amended without the
consent of each Holder so affected pursuant to Section 9.02. When a Default or
Event of Default is so waived, it shall be deemed cured and shall cease to
exist. This paragraph of this Section 6.04 shall be in lieu of (S) 316(a)(1)(B)
of the TIA and such (S) 316(a)(1)(B) of the TIA is hereby expressly excluded
from this Indenture and the Securities, as permitted by the TIA.
6.05. Control by Majority.
-------------------
The Holders of not less than a majority in aggregate principal amount
of the then outstanding Securities shall have the right to 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, provided,
--------
however, that the Trustee may refuse to follow any direction (a) that conflicts
-------
with any rule of law or this Indenture, (b) that the Trustee determines may be
unduly prejudicial to the rights of another Securityholder, or (c) that may
expose the Trustee to personal liability for which reasonable indemnity provided
to the Trustee against such liability shall be inadequate in the Trustee's sole
discretion; provided, further, however, that the Trustee may take any other
-------- ------- -------
action deemed proper by the Trustee that is not inconsistent with such
direction. This Section 6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA,
and such (S)(S) 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
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6.06. Limitation on Suits.
-------------------
No Holder of any Securities shall have any right to institute any
proceeding with respect to this Indenture or the Securities or any remedy
hereunder unless the Holders of at least 25% in aggregate principal amount of
the outstanding Securities have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as Trustee under the
Securities and this Indenture, the Trustee has failed to institute such
proceeding within 30 days after receipt of such notice, request and offer of
indemnity and the Trustee, within such 30-day period, has not received
directions inconsistent with such written request by Holders of not less than a
majority in aggregate principal amount of the outstanding Securities.
The foregoing limitations shall not apply to a suit instituted by a
Holder of a Security for the enforcement of the payment of the principal of,
premium, if any, or interest on, such Security on or after the respective due
dates expressed or provided for in such Security.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
6.07. Right of Holders To Receive Payment.
-----------------------------------
Notwithstanding any other provision in this Indenture, the right of
any Holder of a Security to receive payment of the principal of, premium, if
any, and interest on such Security, on or after the respective due dates
expressed or provided for in such Security, or to bring suit for the enforcement
of any such payment on or after the respective due dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default 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 on the
Securities for the whole amount of the principal of, premium, if any, and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum provided for by 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.
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 the
Holders allowed in any judicial proceedings relative to the Company or the
Material Subsidiaries of the Company (or any other obligor upon the Securities),
their creditors or their property and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such judicial
proceedings 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 7.08.
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Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
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.
6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article Six, it
shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.08;
Second: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for interest;
Third: to Holders for the principal amounts (including any premium)
owing under the Securities, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for the
principal (including any premium); and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
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 in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in aggregate principal amount of the outstanding Securities.
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 or any Security 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 the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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ARTICLE SEVEN
TRUSTEE
7.01. Duties.
------
(a) In case an Event of Default has occurred, the Trustee shall
exercise such rights and powers vested in it under this Indenture, and use the
same degree of care and skill in its exercise thereof, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default,
(i) the Trustee need perform only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but the Trustee need not
verify the contents thereof.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01, and
Section 7.02.
7.02. Rights of Trustee.
-----------------
Subject to Section 7.01 hereof and the provisions of TIA (S) 315:
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(a) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of its own negligence.
(e) The Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture or the Escrow Agreement, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses, fees and liabilities which may be incurred therein or thereby.
(h) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless (i) a Trust Officer shall have actual knowledge
thereof or (ii) the Trustee shall have received written notice thereof
pursuant to Section 11.02 from the Company or any Holder.
7.03. Individual Rights of Trustee.
----------------------------
The Trustee, any Paying Agent, Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 7.11 and 7.12 and TIA (S)(S) 310
and 311, may otherwise deal with the Company and its Subsidiaries with the same
rights it would have if it were not the Trustee, Paying Agent, Registrar or such
other agent.
7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or the Securities, it shall not be accountable for the
Company's use or application of the proceeds from the Securities, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the
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Trustee and it shall not be responsible for any statement
in the Securities other than the Trustee's certificate of authentication.
7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail at the Company's expense to each
Holder of the Securities notice of the Default or Event of Default within 30
days after obtaining knowledge thereof; provided, however, that, except in the
-------- -------
case of a Default or an Event of Default in the payment of the principal of,
premium, if any, or interest on any Security, or a failure to comply with
Sections 4.12, 4.13 or 5.01, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee of the
board of directors or a committee of the directors of the Trustee and/or Trust
Officers in good faith determines that the withholding of such notice is in the
interest of the Holders. This Section 7.05 shall be in lieu of the proviso to
(S) 315(b) of the TIA and such proviso to (S) 315(b) of the TIA is hereby
expressly exc luded from this Indenture and the Securities, as permitted by
the TIA.
7.06. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder, except as the Trustee may agree with the
Company.
7.07. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA (S) 313(a) shall have occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such May 15 that complies with TIA (S) 313(a). The Trustee also shall comply
with TIA (S)(S) 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each securities exchange, if
any, on which the Securities are listed.
The Company shall notify the Trustee in writing if the Securities
become listed on any securities exchange.
7.08. Compensation and Indemnity.
--------------------------
The Company covenants and agrees to pay the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it arising out of or in connection
with the administration of this trust and its rights or duties hereunder or in
respect of the Escrow Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder or
-60-
thereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its prior
written consent, which shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.08, the
Trustee shall have a Lien prior to the Securities on all assets held or
collected by the Trustee and the Escrow Agent, in its capacity as Trustee,
except assets held in trust to pay the principal of, premium, if any, or
interest on particular Securities.
Without limiting any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(f) or (g), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 7.08 and any Lien arising
hereunder shall survive the resignation or removal of any trustee, the discharge
of the Company's obligations pursuant to Article Eight and/or the termination of
this Indenture.
7.09. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee and may appoint a successor
trustee with the Company's prior written consent. The Company may remove the
Trustee if:
1. the Trustee fails to comply with Section 7.11;
2. the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
3. a receiver or other public officer takes charge of the Trustee or
its property; or
4. the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. The Trustee shall be
entitled to payment of its fees and reimbursement of its expenses while acting
as Trustee, and to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Securities may, with the
Company's prior written consent, appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.08, the resignation
or removal of the retiring
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Trustee shall become effective, and 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 Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.11, any Holder permitted
to do so by the TIA may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.09, the Company's obligations under Section 7.08 shall continue for the
benefit of the retiring Trustee.
7.10. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall, if such resulting, surviving or transferee corporation or national
banking association is otherwise eligible hereunder, be the successor Trustee.
7.11. Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(5) and which
shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. The Trustee shall comply with TIA (S) 310(b) (subject to the
penultimate paragraph thereof) and the Company shall co mp ly with TIA (S) 310.
7.12. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S)(S) 311(b). If the present or any future Trustee
shall resign or be removed, it shall be subject to TIA (S) 311(a) to the extent
provided therein.
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ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
8.01. Termination of the Company's Obligations.
----------------------------------------
The Company may terminate its obligations under the Securities and
this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money has theretofore been
deposited with the Trustee or the Paying Agent in trust or segregated and held
in trust by the Company and thereafter repaid to the Company, as provided in
Section 8.04) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all of the Securities under arrangements satisfactory to
the Trustee for the giving of such notice or (ii) all Securities have
otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust solely for the benefit of the Holders for that purpose, money in
such amount as is sufficient without consideration of reinvestment of such
interest, to pay the principal of, premium, if any, and interest on the
outstanding Securities to maturity or redemption, as certified in a
certificate of a nationally recognized firm of independent public
accountants or investment bankers; provided that the Trustee shall have
--------
been irrevocably instructed to apply such money to the payment of said
principal, premium, if any, and interest with respect to the Securities;
(c) no Default or Event of Default with respect to this Indenture or
the Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligation under
the Securities and this Indenture have been complied with.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02 and 7.08 shall survive until the
Securities are no longer outstanding pursuant to the last paragraph of Section
2.08. After the Securities are no longer outstanding, the Company's obligations
in Sections 7.08, 8.04 and 8.05 shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities and this Indenture except for those surviving obligations
specified above.
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8.02. Legal Defeasance and Covenant Defeasance.
----------------------------------------
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (ii) the Company's obligations with respect to such
Securities under Sections 2.05, 2.06, 2.07 and 4.02, and, with respect to the
Trustee, under Section 7.08, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article Eight. Subject to
compliance with this Section 8.02, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Five and in
Sections 4.07 (except to the extent required to be complied with by the TIA)
through 4.19 with respect to the outstanding Securities on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purpose of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01(c), but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (x)
cash, in United States dollars, (y) direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for
the payment of which guarantee or obligation the full faith and credit of
the United States is pledged ("U.S. Government Obligations") maturing as to
principal, premium, if
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any, and interest in such amounts of cash, in United
States dollars, and at such times as are sufficient without consideration
of any reinvestment of such interest, to pay the principal of, premium, if
any, and interest on the outstanding Securities not later than one day
before the due date of any payment, or (z) a combination thereof,
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 and which shall be applied by the
Trustee to pay and discharge the principal of, premium, if any, and
interest on the outstanding Securities (except lost, stolen or destroyed
Securities which have been replaced or paid) on the Final Maturity Date or
on an earlier redemption date in accordance with the terms of this
Indenture and of such Securities; provided, however, that the Trustee shall
-------- -------
have received an irrevocable written order from the Company instructing the
Trustee to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities; provided,
--------
further, that if the Securities are to be redeemed, either notice of such
-------
redemption shall have been given or the Company shall have given the
Trustee irrevocable directions to give notice of such redemption in the
name, and at the expense of the Company, under arrangements satisfactory to
the Trustee;
(ii) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default relating to the
incurrence of Indebtedness to finance such defeasance) or, insofar as
Section 6.01(f) or (g) is concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period);
(iii) such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any securities
of the Company;
(iv) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument to which the Company is a party or by which it is
bound (other than this Indenture);
(v) in the case of an election under paragraph (b) above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such legal defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such legal
defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any other holders of
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Indebtedness of the Company, and (y) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable Bankruptcy Law;
provided, however, that if a court were to rule under any such law in any
-------- -------
case or proceeding that the trust funds remained property of the Company,
no opinion needs to be given as to the effect of such laws on the trust
funds except the following: (A) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid to
Holders of Securities, the Trustee will hold, for the benefit of the
Holders of Securities, a valid and enforceable security interest in such
trust funds that is not avoidable in bankruptcy or otherwise, subject only
to principles of equitable subordination, (B) the Holders of Securities
will be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used, and (C) no property, rights in
property or other interests granted to the Trustee or the Holders of
Securities in exchange for or with respect to any of such funds will be
subject to any prior rights of any other person, subject only to prior
Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or
any section of any other Bankruptcy Law having the same effect), but still
subject to the foregoing clause (B); and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (x) all conditions
precedent provided for relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c) above,
as the case may be, have been complied with and (y) if any other
Indebtedness of the Company shall then be outstanding or committed, such
legal defeasance or covenant defeasance will not violate the provisions of
the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to paragraph (d) above in respect
of the outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of the
principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, 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 which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
8.03. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.01 and 8.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of the principal, premium, if any, and
interest on the Securities.
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8.04. Repayment to Company.
--------------------
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly
pay to the Company upon receipt by the Trustee of an Officers' Certificate, any
excess money, determined in accordance with Section 8.02, held by it at any
time. The Trustee and the Paying Agent shall pay to the Company, upon receipt
by the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal, premium, if any,
or interest on the Securities that remains unclaimed for two years after payment
to the Holders is required; provided, however, that the Trustee and the Paying
-------- -------
Agent before being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money 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 remaining will be repaid to
the Company. After payment to the Company, Holders entitled to money must look
solely to the Company for payment as general creditors unless an applicable
abandoned property law designates another person, and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
8.05. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had been made pursuant to
this Indenture until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with this Indenture;
provided, however, that if the Company has made any payment of the principal of,
-------- -------
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Company 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.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, and the Trustee
may amend, waive or supplement this Indenture, the Securities or the Escrow
Agreement without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to effect the assumption by a successor Person of all obligations
of the Company under the Securities, this Indenture, the Registration
Rights Agreement and the Escrow Agreement in connection with any
transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to
certificated Securities;
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(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to provide for issuance of the Exchange Securities (which will
have terms substantially identical in all material respects to the Initial
Securities except that the transfer restrictions contained in the Initial
Securities will be modified or eliminated, as appropriate), and which will
be treated together with any outstanding Initial Securities, as a single
issue of securities; or
(f) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder.
Notwithstanding the above, the Trustee and the Company may not make
any change that adversely affects the rights of any Holders hereunder or under
the Escrow Agreement. The Company shall be required to deliver to the Trustee
an Opinion of Counsel stating that any such change made pursuant to paragraph
(a) or (f) of this Section 9.01 does not adversely affect the rights of any
Holder.
9.02. With Consent of Holders.
-----------------------
Subject to Section 6.04, the Company, when authorized by a Board
Resolution, and the Trustee may waive, modify and amend this Indenture, the
Securities or the Escrow Agreement with the written consent of the Holders of
not less than two-thirds in aggregate principal amount of the then outstanding
Securities, and the Holders of not less than two-thirds in aggregate principal
amount of the then outstanding Securities by written notice to the Trustee may
waive future compliance by the Company with any provision of this Indenture or
the Securities.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, a modification, amendment or waiver
(including pursuant to Section 6.04) may not, directly or indirectly:
(a) reduce the percentage in outstanding aggregate principal amount of
Securities the Holders of which must consent to an amendment, modification
or waiver of any provision of this Indenture, the Securities or the Escrow
Agreement;
(b) reduce the rate of or change the time for payment of interest,
including defaulted interest or Additional Interest, on any Security;
(c) reduce the principal amount outstanding of, or change the fixed
maturity of, any Security, or change the date on which any Security may be
subject to redemption, or reduce the redemption price therefor;
(d) make the principal of, premium, if any, or interest on any
Security payable in money other than that stated in the Security;
(e) modify Section 6.04 or Section 6.07, or modify this Section 9.02
(other than to add sections of this Indenture or the Securities which may
not be modified, amended or waived without the consent of each
Securityholder affected);
(f) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities;
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(g) waive a default in the payment of the principal of, premium, if
any, or interest on, or redemption with respect to, any Security (except a
rescission of acceleration of the Securities by two-thirds of the Holders
for non-payment defaults and a waiver of the consequences of such
acceleration);
(h) subordinate in right of payment, or otherwise subordinate, the
Securities to any other Indebtedness or obligation of the Company;
(i) upon or following the occurrence of a Change of Control, amend,
alter, change or modify the obligation of the Company to make and
consummate a Change of Control Offer with respect to such Change of Control
or waive any Default in the performance of any such offer or modify any of
the provisions or definitions with respect to any such offer; or
(j) directly or indirectly release the liens on the Escrow Collateral
except as permitted by the Escrow Agreement.
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 Holder of each Security
affected thereby, with a copy to the Trustee, a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any amendment, supplement or waiver.
9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect; provided, however, that
-------- -------
this Section 9.03 shall not of itself require that this Indenture or the Trustee
be qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same debt
as the consenting Holder's Security, 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 his Security or portion of a Security by written notice to the
Trustee received before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver. An amendment, supplement or waiver becomes
effective upon receipt by the Trustee of such Officers' Certificate and evidence
of consent by the Holders of the requisite percentage in principal amount of
outstanding Securities. Any revocation shall be effective only if the Trustee
receives the written notice of revocation before the date the amendment,
supplement or waiver becomes effective. Notwithstanding the above, nothing in
this paragraph shall impair the right of any Holder under (S) 316(b) of
the TIA.
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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
second, third and fourth sentences of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date. Such consent shall
be effective only for actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (a)
through (j) of Section 9.02; if it makes such a change, the amendment,
supplement or waiver shall bind every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting Holder's Security.
9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee shall (in accordance with the specific direction of the Company)
request the Holder of the Security to deliver it to the Trustee. The Trustee
shall (in accordance with the specific direction of the Company) place an
appropriate notation on the Security about the changed terms and return it to
the Holder. 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. Failure to make
the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.
9.06. Trustee May Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon the Company
in accordance with its terms.
ARTICLE TEN
COLLATERAL AND SECURITY; CONTINGENT WARRANTS
10.01. Escrow Agreement.
----------------
(a) The due and punctual payment of the interest on the Securities
when and as the same shall be due and payable on an interest payment date, at
maturity or by acceleration, and interest on the overdue principal of and
interest (to the extent permitted by law), if any, on the Securities and
performance of all other obligations of the Company to the Holders of Securities
or the Trustee under this Indenture with respect to the Securities and the
Securities, according to the terms hereunder or thereunder, shall be secured as
provided in the Escrow Agreement which the Company, the Escrow Agent and the
Trustee have entered into simultaneously with the execution of this Indenture.
Upon the acceleration of the maturity of the Securities, the Escrow Agreement
will provide for the foreclosure by the Trustee of the net proceeds of the
Escrow Account. Each
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Holder of Securities, by its acceptance thereof, consents and agrees to the
terms of the Escrow Agreement (including, without limitation, the provisions
providing for foreclosure and disbursement of Collateral) as the same may be in
effect or may be amended from time to time in accordance with its terms and
authorizes and directs the Escrow Agent and the Trustee to enter into the Escrow
Agreement and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Company shall deliver to the Trustee copies of the
Escrow Agreement, and shall do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Escrow Agreement, to assure and confirm to the Trustee the security interest in
the Collateral contemplated by the Escrow Agreement or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture with respect to, and of, the Securities, according
to the intent and purposes expressed in the Escrow Agreement. The Company shall
take any and all actions reasonably required to cause the Escrow Agreement to
create and maintain (to the extent possible under applicable law), as security
for the obligations of the Company hereunder, a valid and enforceable perfected
first priority Lien in and on all the Collateral, in favor of the Trustee for
the benefit of the Holders of Securities, superior to and prior to the rights of
all third Persons and subject to no other Liens. The Trustee and the Escrow
Agent shall have no responsibility for perfecting or maintaining the perfection
of the Trustee's security interest in the Collateral or for filing any
instrument, document or notice in any public office at any time or times.
(b) The Escrow Agreement shall further provide that in the event (i)
a portion of the Securities has been retired by the Company and there is no
Default or Event of Default under this Indenture and no Additional Interest is
accruing or remains unpaid, funds representing the interest payments which have
not previously been made on such retired Securities shall, upon the written
request of the Company to the Escrow Agent and the Trustee, be paid to the
Company upon compliance with Section 3(c) of the Escrow Agreement, the release
of collateral provisions of the TIA and upon receipt of a notice relating
thereto from the Trustee and (ii) if immediately prior to an interest payment
date on the Securities, the Company has deposited with the Trustee funds
sufficient to pay the interest on the Securities on such interest payment date,
and there is no Default or Event of Default under this Indenture and no
Additional Interest is accruing or remains unpaid, then funds representing a
like amount shall, upon the written request of the Company to the Escrow Agent
and the Trustee, be paid to the Company upon compliance with Section 3(d) of the
Escrow Agreement, the release of collateral provisions of the TIA and upon
receipt of a notice relating thereto from the Trustee.
10.02. Recording and Opinions.
----------------------
(a) The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended to
be created by the Escrow Agreement and reciting the details of such action, or
(ii) stating that in the opinion of such counsel no such action is necessary to
make such Lien effective.
(b) The Company shall furnish to the Escrow Agent and the Trustee on
September 15, 1997, and on each September 15 thereafter until the date upon
which the balance of Available Funds (as defined in the Escrow Agreement) shall
have been reduced to zero, an Opinion of Counsel, dated as of such date, either
(i) stating that (A) in the opinion of such counsel, action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
refiling of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary to maintain
the Lien of the Escrow Agreement and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are given and (B)
based on relevant laws as in effect on the date of such Opinion of Counsel, all
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financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Securities and the Trustee
hereunder and under the Escrow Agreement with respect to the security interests
in the Collateral or (ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
10.03. Release of Collateral.
---------------------
(a) Subject to subsections (b), (c) and (d) of this Section 10.03,
Collateral may be released from the Lien and security interest created by the
Escrow Agreement only in accordance with the provisions of the Escrow Agreement.
(b) Except to the extent that any Lien on proceeds of Collateral is
automatically released by operation of Section 9-306 of the Uniform Commercial
Code or other similar law, no Collateral shall be released from the Lien and
security interest created by the Escrow Agreement pursuant to the provisions of
the Escrow Agreement, other than to the Holders pursuant to the terms thereof,
unless there shall have been delivered to the Trustee the certificate required
by Section 10.03(d) and Section 10.04.
(c) At any time when an Event of Default shall have occurred and be
continuing and the maturity of the Securities issued on the Issue Date shall
have been accelerated (whether by declaration or otherwise), no Collateral shall
be released pursuant to the provisions of the Escrow Agreement, and no release
of Collateral in contravention of this Section 10.03(c) shall be effective as
against the Holders of Securities, except for the disbursement of all Available
Funds (as defined in the Escrow Agreement) to the Trustee pursuant to Section
6(b) of the Escrow Agreement.
(d) The release of any Collateral from the Liens and security
interests created by this Indenture and the Escrow Agreement shall not be deemed
to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Collateral is released pursuant to the terms
hereof or pursuant to the terms of the Escrow Agreement. To the extent
applicable, the Company shall cause TIA (S) 314(d) relating to the release of
property or securities from the Lien and security interest of the Escrow
Agreement to be complied with. Any certificate or opinion required by TIA
(S)4(d) may be made by an Officer of the Company except in cases where TIA (S)
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee in the ex ercise of reasonable care.
10.04. Certificates of the Company.
---------------------------
The Company shall furnish to the Trustee, prior to any proposed
release of Collateral other than pursuant to the express terms of the Escrow
Agreement, (i) all documents required by TIA (S)314(d) and (ii) an Opinion of
Counsel, which may be rendered by internal counsel to the Company, to the effect
that such accompanying documents constitute all documents required by TIA
(S)314(d). The Trustee may, to the extent permitted by Section 7.01 and Section
7.02, accept as conclusive evidence of compliance with the foregoing provisions
the appropriate statements contained in such documents and such Opinion of
Counsel.
10.05. Authorization of Actions To Be Taken by the Trustee Under the
-------------------------------------------------------------
Escrow Agreement.
----------------
Subject to the provisions of Section 7.01 and Section 7.02, the
Trustee may, without the consent of the Holders of Securities, on behalf of the
Holders of Securities, take all actions it deems necessary
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or appropriate in order to (a) enforce any of the terms of the Escrow Agreement
and (b) collect and receive any and all amounts payable in respect of the
obligations of the Company hereunder. The Trustee shall have power to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Escrow Agreement or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Securities in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of
Securities or of the Trustee).
10.06. Authorization of Receipt of Funds by the Trustee Under the
----------------------------------------------------------
Escrow Agreement.
----------------
The Trustee is authorized to receive any funds for the benefit of the
Holders of Securities disbursed under the Escrow Agreement, and to make further
distributions of such funds to the Holders of Securities according to the
provisions of this Indenture.
10.07. Termination of Security Interest.
--------------------------------
Upon the earliest to occur of (i) the date upon which the balance of
Available Funds (as defined in the Escrow Agreement) shall have been reduced to
zero, (ii) the payment in full of all obligations of the Company under this
Indenture and the Securities, (iii) legal defeasance pursuant to Section 8.02
and (iv) covenant defeasance pursuant to Section 8.02, the Trustee shall, at the
written request of the Company, release the Liens pursuant to this Indenture and
the Escrow Agreement upon the Company's compliance with the provisions of the
TIA pertaining to release of collateral.
10.08. Issuance of Contingent Warrants.
-------------------------------
The Company will issue to Holders of the Securities warrants (the
"Contingent Warrants"), exercisable for 8.0% of the Common Stock of the Company
on a fully-diluted basis as of the date of such issuance after giving effect to
the issuance of such Contingent Warrants, in the event that the Company does not
effect a primary underwritten public offering (excluding any offering pursuant
to Form S-8 under the Securities Act or any other publicly registered offering
pursuant to the Securities Act pertaining to an issuance of shares of Common
Stock or securities exercisable therefor under any benefit plan, employee
compensation plan, or employee or director stock purchase plan) of Common Stock
of the Company pursuant to an effective registration statement under the
Securities Act on or prior to September 1, 1999, resulting in gross proceeds to
the Company of at least $35,000,000. Such Contingent Warrants will have certain
rights pursuant to the Warrant Agreement and holders thereof will have the
benefits of the Warrant Shares Registration Rights Agreement.
Any Contingent Warrants issued shall be issued to the Holders of the
outstanding Securities as of September 1, 1999, pro rata, based upon the
aggregate principal amount of the Securities held by such Holder as of August
15, 1999. Such Contingent Warrants shall be issued and delivered within 30 days
of the record date for such issuance.
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ARTICLE ELEVEN
MISCELLANEOUS
11.01. Trust Indenture Act of 1939.
---------------------------
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control; provided, however, that this Section
-------- -------
11.01 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
The provisions of Sections 310 through 317 of the TIA that impose
duties on any person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
11.02. Notices.
-------
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows:
If to the Company to:
UNIFI COMMUNICATIONS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Trustee to:
Fleet National Bank
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a Holder,
including any notice delivered in connection with TIA (S)(S) 310(b), TIA
(S)(S) 313(c), TIA (S)(S) 314(a) and TIA (S)(S) 315(b), shall be mailed by
-74-
first class mail to such Holder at the address of such Holder as it appears
on the Securities' register maintained by the Registrar and shall be
sufficiently given to such Holder if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee. Any notice or communication shall also be mailed to any other
persons described in TIA (S)(S) 313(c) to the extent and in the manner
required by the TIA.
Failure to mail a notice or communication to a Securityholder 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, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
11.03. Communication by Holders with Other Holders.
-------------------------------------------
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
obligor, the Trustee, the Registrar and any other person shall have the
protection of TIA (S)(S) 312(c).
11.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, such obligor shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
11.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion has
read and understands such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
-------- -------
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
-75-
11.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
11.07. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law. The Trustee, the
Company and the Holders agree to submit to the jurisdiction of the courts of the
State of New York in any action or proceeding arising out of or relating to this
Indenture or the Securities.
11.08. No Interpretation of Other Agreements.
-------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
11.09. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or Affiliate, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
11.10. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
11.11. Counterparts.
------------
The parties may sign any number of counterparts of this Indenture.
Each such counterpart shall be an original, but all of them together represent
the same agreement.
11.12. Separability.
------------
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
11.13. Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
-76-
11.14. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
11.15. Business Days.
-------------
If a payment date is not a Business Day, payment shall be made on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
[Remainder of page intentionally left blank]
-77-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
UNIFI COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Name:
Title:
FLEET NATIONAL BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
-------------------------------
Name:
Title:
EXHIBIT A
[FORM OF INITIAL SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
PROMULGATED UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS (OR SUCH SHORTER PERIOD AS MAY THEN BE REQUIRED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER THEREOF OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
PROMULGATED UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHED (OR HAS FURNISHED ON ITS BEHALF
BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 PROMULGATED UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 PROMULGATED UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE
YEARS (OR SUCH SHORTER PERIOD AS MAY THEN BE REQUIRED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS,
WRITTEN LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS
SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. THIS SECURITY WAS ISSUED
WITH ORIGINAL ISSUE DISCOUNT UNDER SECTION 1273 OF THE INTERNAL REVENUE CODE.
YOU MAY CONTACT THE CHIEF FINANCIAL OFFICER OF UNIFI COMMUNICATIONS, INC. AT ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, TELEPHONE NUMBER (508) 551-
7500, WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE ORIGINAL
ISSUE DISCOUNT.
A-1
UNIFI COMMUNICATIONS, INC.
14% SENIOR NOTE DUE 2004
No. $__________
UNIFI COMMUNICATIONS, INC., a corporation incorporated under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on March 1, 2004, at the office or
agency of the Company referred to below, and to pay cash interest thereon on
March 1 and September 1, in each year, commencing on September 1, 1997, accruing
from the most recent Interest Payment Date to which interest has been paid or
duly provided for at the rate of 14% per annum, until the principal hereof is
paid or duly provided for. The Company shall pay interest on overdue principal
from time to time on demand at the rate of 2% per annum in excess of the rate
provided in the immediately preceding sentence; to the extent lawful, the
Company shall pay interest on overdue installments of interest (without regard
to any applicable grace periods) from time to time on demand at the rate of 2%
per annum in excess of the rate provided in the immediately preceding sentence.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be February 15 and August 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate provided for above, to the extent lawful, shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may be paid to the
person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
-------- -------
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
security register maintained by the Registrar.
Reference is hereby made to further provisions of this Security set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UNIFI COMMUNICATIONS, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By:
------------------------------------
Authorized Officer
Dated:
A-3
(Reverse of Security)
UNIFI COMMUNICATIONS, INC.
14% SENIOR NOTE DUE 2004
1. Indenture. UNIFI COMMUNICATIONS, INC., a Delaware corporation
---------
(the "Company"), issued the Securities (as defined below) under an Indenture,
dated as of February 21, 1997 (the "Indenture"), between the Company and Fleet
National Bank, a national banking association, as trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture). This
Security is one of a duly authorized issue of Initial Securities of the Company
designated as its 14% Senior Notes due 2004 (the "Initial Securities"). The
Securities are limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $175,000,000. The Securities include the Initial
Securities and the Exchange Securities (as defined below) issued in exchange for
the Initial Securities pursuant to the Indenture. The Initial Securities and
the Exchange Securities are treated as a single class of securities under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
2. Redemption.
----------
(a) Optional Redemption. The Securities are subject to redemption, at
-------------------
the option of the Company, in whole or in part, at any time on or after March 1,
2001, upon not less than 30 nor more than 60 days' prior notice, at the
following Redemption Prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period beginning on March 1 of the years indicated
below:
Redemption
Year Price
---- -----------
2001 114.000%
2002 107.000%
2003 and thereafter 103.500%
(b) Optional Redemption upon Equity Offerings. In the event that on
-----------------------------------------
or prior to March 1, 2000, the Company consummates one or more Equity Offerings
of its Common Stock, the Company may, at its option, redeem from the proceeds of
such Equity Offerings no later than 60 days following the consummation of such
offering, up to 33% of the aggregate principal amount of the Securities
originally issued at a Redemption Price equal to 114% of the aggregate principal
amount thereof, plus accrued and unpaid interest, if any, on the date of
redemption of the Securities so redeemed; provided, however, that immediately
-------- -------
after giving effect to any such redemption, not less than 67% of the aggregate
principal amount of the Securities originally issued remains outstanding.
A-4
(c) Interest Payments. In the case of any redemption of Securities,
-----------------
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof)
for whose redemption and payment provision is made in accordance with the
Indenture shall cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Security
------------------
in part only, a new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
3. Offers to Purchase. Sections 4.12 and 4.13 of the Indenture
------------------
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of the Securities in accordance
with the procedures set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default shall occur and be
---------------------
continuing, the principal amount of all of the outstanding Securities, plus all
accrued and unpaid interest, if any, to and including the date the Securities
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
5. Defeasance. The Indenture contains provisions (which provisions
----------
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company under this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
----------------------
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than two-thirds in aggregate principal amount of the
Securities at the time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
7. Denominations, Transfer and Exchange. The Securities are
------------------------------------
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the security
register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
A-5
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
9. Governing Law. This Security shall be governed by and construed
-------------
in accordance with the laws of the State of New York, without regard to
conflicts of law principles.
10. Registration Rights. Pursuant to the Registration Rights
-------------------
Agreement between the Company and the Initial Purchaser, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Initial Security shall have the right to exchange this Initial Security for the
Company's Series B 14% Senior Notes due 2004 (the "Exchange Securities"), which
have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to the Initial Securities. The
Holders of the Initial Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
11. Contingent Warrants. In the event that the Company does not
-------------------
effect a primary underwritten public offering (excluding any offering pursuant
to Form S-8 under the Securities Act or any other publicly registered offering
pursuant to the Securities Act pertaining to an issuance of Common Stock or
securities exercisable therefor under any benefit plan, employee compensation
plan, or employee or director or stock purchase plan) of its Common Stock on or
prior to September 1, 1999 resulting in gross proceeds to the Company of at
least $35.0 million, pursuant to Section 10.08 of the Indenture and in
accordance with the terms of the Warrant Agreement between the Company and the
Initial Purchaser, the Company will issue Contingent Warrants to the record
Holders of Securities. Such Contingent Warrants will be exercisable for 8.0% of
the Common Stock of the Company on a fully-diluted basis as of the date of such
issuance after giving effect to the issuance of such Contingent Warrants.
A-6
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 4.12 or 4.13 of the Indenture, check the appropriate box:
Section 4.12 [ ]
Section 4.13 [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.12 or 4.13 of the Indenture, state the amount:
$_______________ ($1,000 or an integral multiple thereof)
Date: _______ Your Signature:
___________________________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee: ____________________________________
The holder's signature must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature guarantee
programs:
1) The Securities Transfer Agents Medallion Program;
2) The NYSE Medallion Signature Program; and
3) The Stock Exchanges Medallion Program.
A-7
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
---------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: _____________ Your signature:
--------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
The holder's signature must be guaranteed by an eligible
guarantor institution which is a member of one of the
following recognized signature guarantee programs:
1) The Securities Transfer Agents Medallion Program;
2) The NYSE Medallion Signature Program; and
3) The Stock Exchanges Medallion Program.
In connection with any transfer of this Security occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) February 21, 2000, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer:
[Check One]
---------
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter can
be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as amended;
or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(6) __ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended,
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3), (4), (5)
-------- -------
or (7) is checked, the Company or the Trustee may require, prior to registering
any such transfer of the Securities, in its sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security 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 2.17 of the Indenture shall have
been satisfied.
Dated: __________________________________ Signed:_________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee:
----------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ____________ -----------------------------------------------
NOTICE: To be executed by an executive officer
EXHIBIT B
[FORM OF EXCHANGE SECURITY]
PURSUANT TO PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986 RELATING
TO ORIGINAL ISSUE DISCOUNT AND TREASURY REGULATIONS PUBLISHED THEREUNDER, THE
FOLLOWING INFORMATION IS PROVIDED: (1) THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT IN THE AMOUNT OF $[ ] PER $1,000 OF PRINCIPAL
AMOUNT; (2) THE ISSUE PRICE OF THIS SECURITY IS $[ ] PER $1,000 OF
PRINCIPAL AMOUNT; (3) THE ISSUE DATE OF THIS SECURITY IS [ ]; (4) THE
"COMPARABLE YIELD" MATURITY OF THIS SECURITY (WITHIN THE MEANING OF TREASURY
REGULATION 1.1275-4) IS [ ]%; AND (5) THE "PROJECTED PAYMENT SCHEDULE"
(WITHIN THE MEANING OF TREASURY REGULATION 1.1275-4) IS AS FOLLOWS:
DATE AMOUNT PER $1,000 DATE AMOUNT PER $1,000
---- ----------------- ---- -----------------
[ ] $[ ] [ ] $[ ]
HOLDERS SHOULD REFER TO THE DISCUSSION OF CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS SET FORTH IN THE OFFERING MEMORANDUM. CONTACT THE COMPANY AT ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, TELEPHONE NUMBER: (508) 551-
7800, ATTENTION: CHIEF FINANCIAL OFFICER FOR MORE DETAILED INFORMATION
CONCERNING THE COMPUTATION OF ORIGINAL ISSUE DISCOUNT SET FORTH HEREIN.
UNIFI COMMUNICATIONS, INC.
SERIES B 14% SENIOR NOTE DUE 2004
No. $__________
UNIFI COMMUNICATIONS, INC., a corporation incorporated under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on March 1, 2004, at the office or
agency of the Company referred to below, and to pay cash interest thereon on
March 1 and September 1, in each year, commencing on September 1, 1997, accruing
from the most recent Interest Payment Date to which interest has been paid or
duly provided for at the rate of 14% per annum, until the principal hereof is
paid or duly provided for. The Company shall pay interest on overdue principal
from time to time on demand at the rate of 2% per annum in excess of the rate
provided in the immediately preceding sentence; to the extent lawful, the
Company shall pay interest on overdue installments of interest (without regard
to any applicable grace periods) from time to time on demand at the rate of 2%
per annum in excess of the rate provided in the immediately preceding sentence.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular
B-1
Record Date for such interest, which shall be February 15 and August 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate provided for above, to the extent lawful, shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may be paid to the
person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
-------- -------
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
security register maintained by the Registrar.
Reference is hereby made to further provisions of this Security set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UNIFI COMMUNICATIONS, INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By:
----------------------------------------
Authorized Officer
Dated:
B-2
(Reverse of Security)
UNIFI COMMUNICATIONS, INC.
SERIES B 14% SENIOR NOTE DUE 2004
1. Indenture. UNIFI COMMUNICATIONS, INC., a Delaware corporation
---------
(the "Company"), issued the Securities (as defined below) under an Indenture,
dated as of February 21, 1997 (the "Indenture"), between the Company and Fleet
National Bank, a national banking association, as trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture). This
Security is one of a duly authorized issue of Exchange Securities of the Company
designated as its Series B 14% Senior Notes due 2004 (the "Exchange
Securities"). The Securities are limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $175,000,000. The Securities
include the 14% Senior Notes due 2004 (the "Initial Securities") and the
Exchange Securities issued in exchange for the Initial Securities pursuant to
the Indenture. The Initial Securities and the Exchange Securities are treated
as a single class of securities under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
2. Redemption.
----------
(a) Optional Redemption. The Securities are subject to redemption, at
-------------------
the option of the Company, in whole or in part, at any time on or after March 1,
2001, upon not less than 30 nor more than 60 days' prior notice, at the
following Redemption Prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period beginning on March 1 of the years indicated
below:
Redemption
Year Price
---- -------------
2001 114.000%
2002 107.000%
2003 and thereafter 103.500%
(b) Optional Redemption upon Equity Offerings. In the event that on
-----------------------------------------
or prior to March 1, 2000, the Company consummates one or more Equity Offerings
of its Common Stock, the Company may, at its option, redeem from the proceeds of
such Equity Offerings no later than 60 days following the consummation of such
offering, up to 33% of the aggregate principal amount of the Securities
originally issued at a Redemption Price equal to 114% of the aggregate principal
amount thereof, plus accrued and unpaid interest, if any, date of redemption of
the Securities so redeemed; provided, however, that immediately after
-------- -------
B-3
giving effect to any such redemption, not less than 67% of the aggregate
principal amount of the Securities originally issued remains outstanding.
(c) Interest Payments. In the case of any redemption of Securities,
-----------------
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof)
for whose redemption and payment provision is made in accordance with the
Indenture shall cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Security
------------------
in part only, a new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
3. Offers to Purchase. Sections 4.12 and 4.13 of the Indenture
------------------
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of the Securities in accordance
with the procedures set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default shall occur and be
---------------------
continuing, the principal amount of all of the outstanding Securities, plus all
accrued and unpaid interest, if any, to and including the date the Securities
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
5. Defeasance. The Indenture contains provisions (which provisions
----------
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company under this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
----------------------
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than two-thirds in aggregate principal amount of the
Securities at the time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
7. Denominations, Transfer and Exchange. The Securities are
------------------------------------
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the security
register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
the Borough of Manhattan in The City of New York or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to
B-4
the Company and the Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
9. Governing Law. This Security shall be governed by and construed
-------------
in accordance with the laws of the State of New York, without regard to
conflicts of law principles.
10. Contingent Warrants. In the event that the Company does not
-------------------
effect a primary underwritten public offering (excluding any offering pursuant
to Form S-8 under the Securities Act or any other publicly registered offering
pursuant to the Securities Act pertaining to an issuance of Common Stock or
securities exercisable therefor under any benefit plan, employee compensation
plan, or employee or director or stock purchase plan) of its Common Stock on or
prior to September 1, 1999 resulting in gross proceeds to the Company of at
least $35.0 million, pursuant to Section 10.08 of the Indenture and in
accordance with the terms of the Warrant Agreement between the Company and the
Initial Purchaser, the Company will issue Contingent Warrants to the record
Holders of Securities. Such Contingent Warrants will be exercisable for 8.0% of
the Common Stock of the Company on a fully-diluted basis as of the date of such
issuance after giving effect to the issuance of such Contingent Warrants.
B-5
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 4.12 or 4.13 of the Indenture, check the appropriate box:
Section 4.12 [ ]
Section 4.13 [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.12 or 4.13 of the Indenture, state the amount:
$_______________ ($1,000 or an integral multiple thereof)
Date: __________ Your Signature:
________________________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guarantee: ________________________________
The holder's signature must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature guarantee
programs:
1) The Securities Transfer Agents Medallion Program;
2) The NYSE Medallion Signature Program; and
3) The Stock Exchanges Medallion Program.
B-6
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)___________________________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
------------------------------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
------------------------------------------------------------------------------
Date: _____________ Your signature:______________________________________
(Sign exactly as your name appears on the
other
side of this Security)
Signature Guarantee:_________________________________________________________
The holder's signature must be guaranteed by an eligible
guarantor institution which is a member of one of the following
recognized signature guarantee programs:
1) The Securities Transfer Agents Medallion Program;
2) The NYSE Medallion Signature Program; and
3) The Stock Exchanges Medallion Program.
EXHIBIT C
FORM OF LEGEND FOR BOOK-ENTRY SECURITY
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH 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 2.17 OF THE INDENTURE.
C-1
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
Fleet National Bank
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Unifi Communications, Inc. (the "Company")
14% Senior Notes due 2004 (the "Securities")
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated February 14, 1997, relating to the Securities and such
other information as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agreed to the matters
stated in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
dated as of February 21, 1997, relating to the Securities (the "Indenture")
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the Securities have not been registered under
the Securities Act, and that the Securities may not be offered or sold
except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities within three years after the
original issuance of the Securities, we will do so only (A) to the Company
or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein),
(C) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter substantially in the form of this
letter, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available),
or (F) pursuant to an effective registration
D-1
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated herein.
4. We understand that, on any proposed resale of any Securities, we
will be required to furnish to you and the Company such certification,
written legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment, as the case may be.
6. We are acquiring the Securities purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Very truly yours,
[Name of Transferee]
By:____________________________________
Authorized Signature
D-2
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------------------------------------
______________, ____
Fleet National Bank
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Unifi Communications, Inc. (the "Company")
14% Senior Notes due 2004 (the "Securities")
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
E-1
You, the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_____________________________________
Authorized Signature
E-2
EXHIBIT G
Subordination
Among the standard subordination provisions that will be provided for
in the documents governing the terms of any Subordinated Indebtedness of the
Company which is permitted under clause (n) of the definition of "Permitted
Indebtedness" in this Indenture, provisions substantially similar to the
following shall be included therein. For the purposes of this Exhibit G only,
----
the following terms shall have the meanings ascribed below:
"Senior Indebtedness" means the 14% Senior Notes due 2004 of the
Company (the "Securities"), issued pursuant to the provisions of an
Indenture dated as of February 21, 1997, between the Company and Fleet
National Bank of Connecticut, as Trustee (the "Indenture"). All
Senior Indebtedness, including without limitation the Securities,
shall include, without limitation, any refinancings thereof, all
principal, accreted value, interest or premium, if any, thereon, all
charges, fees and expenses in connection therewith, and all interest
accruing thereon during the pendency of any bankruptcy or insolvency
proceeding, whether or not allowed thereunder.
"Senior Representative" means a designated representative of
Senior Indebtedness, as such term (or a substantively similar term)
shall be defined in any document governing the terms of any Senior
Indebtedness.
"Subordinated Indebtedness" means Indebtedness of the Company
that is expressly subordinated in right of payment to Senior
Indebtedness pursuant to the provisions of any document governing the
terms of such Subordinated Indebtedness.
1. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets, or
(b) any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(i) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents or, as acceptable to the
holders of Senior Indebtedness, in any other manner, of all Senior
Indebtedness, or provision shall be made for such payment, before the
holders of the Subordinated Indebtedness are entitled to receive any
payment or distribution of any kind or character on account of principal
of, premium, if any, or interest on the Subordinated Indebtedness other
than payments out of a defeasance trust; and
(ii) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the holders of the Subordinated Indebtedness would be
entitled but for these provisions shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy,
G-1
a receiver or liquidating trustee or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives or to the
trustee under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full in cash or Cash Equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness other than payments out of a
defeasance trust and payments in the form of Subordinated Indebtedness; and
(iii) in the event that, notwithstanding the foregoing provisions,
any holder of any Subordinated Indebtedness shall have received any payment
or distribution of assets of the Company of any kind or character, whether
in cash, property or securities, in respect of principal of, premium, if
any, or interest on the Subordinated Indebtedness before all Senior
Indebtedness is paid in full in cash or Cash Equivalents or, as acceptable
to the holders of Senior Indebtedness, in any other manner, or payment
thereof provided for, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other person
making payment or distribution of assets of the Company for application to
the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full in cash or Cash
Equivalents or, as acceptable to the holders of Senior Indebtedness, in any
other manner, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
2. Suspension of Payment When Senior Indebtedness in Default.
---------------------------------------------------------
(i) Unless the preceding Section 1 shall be applicable, upon the
occurrence of a default in the payment when due of principal, premium, if any,
or interest on any Senior Indebtedness (a "Payment Default"), no payment or
distribution of any assets of the Company of any kind or character shall be made
by or on behalf of the Company on account of principal of, premium, if any, or
interest on the Subordinated Indebtedness or on account of the purchase,
redemption or other acquisition of any Subordinated Indebtedness (other than
payments previously made pursuant to the satisfaction and discharge provisions
of any document governing such Subordinated Indebtedness) unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist or
such Senior Indebtedness as to which such Payment Default relates shall have
been discharged or paid in full in cash or Cash Equivalents, after which,
subject to the preceding Section 1 (if applicable), the Company shall resume
making any and all required payments in respect of the Subordinated
Indebtedness, including any missed payments.
(ii) Unless the preceding Section 1 shall be applicable, upon the
occurrence of a default (other than a Payment Default) with respect to any term
or provision of any Senior Indebtedness (a "Non-Payment Default") and upon the
earlier to occur of (i) the fifth day following receipt by the Company from a
Senior Representative of written notice of such occurrence (a "Payment Blockage
Notice"), or (ii) if such Non-Payment Default results from acceleration of the
Subordinated Indebtedness, the date of such acceleration, no payment or
distribution of any assets of the Company of any kind or character (other than
payments previously made pursuant to the satisfaction and discharge provisions
of any instruments governing such Subordinated Indebtedness) shall be made by or
on behalf of the Company on account of principal of, premium, if any, or
interest on the Subordinated Indebtedness or on account of the purchase,
redemption or other acquisition of Subordinated Indebtedness for a period
(``Payment Blockage Period'') commencing on the fifth day following receipt by
the Company of such notice or the date of acceleration referred to in clause
(ii) above, as the case may be, unless and until the earliest to occur of the
following events: (w) 179 days shall have elapsed since receipt of such written
notice by the Company or the date of such acceleration (provided such Senior
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Indebtedness shall not theretofore have been accelerated), (x) such non-payment
default shall have been cured or waived or shall have ceased to exist, (y) such
Senior Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents or (z) such Payment Blockage Period shall have been terminated by
written notice to the Company from the Senior Representative initiating such
Payment Blockage Period, after which, in each case, the Company shall resume
making any and all required payments in respect of the Subordinated
Indebtedness, including any missed payments. Notwithstanding any other
provision contained herein, only one Payment Blockage Period may be commenced
within any consecutive 365-day period. No Non-Payment Default with respect to
Senior Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period shall be, or be made, the basis for
the commencement of a second Payment Blockage Period, whether or not within a
period of 365 consecutive days, unless such default shall have been cured for a
period of not less than 90 consecutive days. In no event shall a Payment
Blockage Period extend beyond 179 days from the fifth day following the receipt
by the Company of the notice referred to in clause (1) of this Section 2(b) or
the date of the acceleration referred to in clause (ii) of this Section 2(b) and
there must be a 186 consecutive day period in any 365 consecutive day period
during which no Payment Blockage Period is in effect.
(iii) In the event that, notwithstanding the foregoing, any holder of
any Subordinated Indebtedness shall have received any payment prohibited by the
foregoing provisions of this Section 2, then and in such event such payment
shall be paid over and delivered forthwith to the Senior Representative or as a
court of competent jurisdiction shall direct for application to the payment of
any due and unpaid Senior Indebtedness, to the extent necessary to pay all such
due and unpaid Senior Indebtedness in cash or Cash Equivalents, after giving
effect to any concurrent payment to or for the holders of Senior Indebtedness.
3. Subrogation to Rights of Holders of Senior Indebtedness.
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Upon the payment in full in cash of all Senior Indebtedness, the
holders of the Subordinated Indebtedness shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Subordinated Indebtedness
shall be paid in full in cash or Cash Equivalents. For purposes of such
subrogation, no payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the holders of the Subordinated
Indebtedness would be entitled except for these provisions, and no payments over
pursuant to these provisions to the holders of Senior Indebtedness by holders of
the Subordinated Indebtedness shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the holders of the Subordinated
Indebtedness, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
If any payment or distribution to which the holders of Subordinated
Indebtedness would otherwise have been entitled but for these provisions shall
have been applied, pursuant to these provisions, to the payment of all amounts
payable under the Senior Indebtedness of the Company, then and in such case the
holders of Subordinated Indebtedness shall be entitled to receive from the
holders of such Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of such Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full.
4. No Waiver of Subordination Provisions.
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(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any
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non-compliance by the Company with the terms, provisions and covenants
as described herein, regardless of any knowledge thereof any such holder may
have or be otherwise charged with.
(b) Without limiting the generality of Section 4(a), the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the holders of the Subordinated Indebtedness, without incurring
responsibility to the holders of the Subordinated Indebtedness and without
impairing or releasing the subordination provided herein or the obligations
hereunder of the holders of the Subordinated Indebtedness to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any person liable in any manner for
the collection or payment of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other person; provided,
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however, that in no event shall any such actions limit the right of the holders
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of the Subordinated Indebtedness to take any action to accelerate the maturity
of the Subordinated Indebtedness pursuant to the provisions of any instrument
governing the terms of Subordinated Indebtedness or to pursue any rights or
remedies thereunder or under applicable laws if the taking of such action does
not otherwise violate the provisions of any instrument governing the terms of
Subordinated Indebtedness.
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