EXHIBIT 10.2
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METROMEDIA FIBER NETWORK, INC.
$[ ]
6.15% CONVERTIBLE SUBORDINATED NOTES DUE [2009]
INDENTURE
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Dated as of [ ], [1999]
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U.S. Bank Trust National Association
Trustee
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Table of Contents
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE...................... 1
Section 1.01 Definitions............................................ 1
Section 1.02 Other Definitions...................................... 12
Section 1.03 Trust Indenture Act Definitions........................ 12
Section 1.04 Rules of Construction.................................. 13
ARTICLE 2. THE NOTES....................................................... 13
Section 2.01 Form and Dating; Payment of Interest................... 13
Section 2.02 Designation; Amount and Issue of Notes; Execution and
Authentication......................................... 15
Section 2.03 Registrar and Paying Agent............................. 16
Section 2.04 Paying Agent to Hold Money in Trust.................... 17
Section 2.05 Holder Lists........................................... 17
Section 2.06 Transfer and Exchange.................................. 17
Section 2.07 Replacement Notes...................................... 31
Section 2.08 Outstanding Notes...................................... 32
Section 2.09 Treasury Notes......................................... 32
Section 2.10 Temporary Notes........................................ 32
Section 2.11 Cancellation........................................... 33
Section 2.12 Defaulted Interest..................................... 33
Section 2.13 CUSIP Numbers.......................................... 34
ARTICLE 3. REDEMPTION AND PREPAYMENT....................................... 34
Section 3.01 Notices to Trustee..................................... 34
Section 3.02 Selection of Notes to Be Redeemed...................... 34
Section 3.03 Notice of Redemption................................... 35
Section 3.04 Effect of Notice of Redemption......................... 35
Section 3.05 Deposit of Redemption Price............................ 36
Section 3.06 Notes Redeemed in Part................................. 36
Section 3.07 Optional Redemption.................................... 36
Section 3.08 Mandatory Redemption................................... 37
ARTICLE 4. CONVERSION...................................................... 37
Section 4.01 Conversion Privilege................................... 37
Section 4.02 Conversion Procedure................................... 38
Section 4.03 Fractional Shares...................................... 39
Section 4.04 Taxes on Conversion.................................... 39
Section 4.05 Company to Provide Stock............................... 39
Section 4.06 Adjustment of Conversion Price......................... 40
Section 4.07 No Adjustment.......................................... 46
Section 4.08 Adjustment for Tax Purposes............................ 47
Section 4.09 Notice of Adjustment................................... 47
Section 4.10 Notice of Certain Transactions......................... 47
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Section 4.11 Effect of Reclassification, Consolidation, Merger
or Sale, Transfer or Conveyance on Conversion
Privilege ............................................. 47
Section 4.12 Trustee's Disclaimer................................... 48
Section 4.13 Voluntary Reduction.................................... 49
ARTICLE 5. COVENANTS....................................................... 49
Section 5.01 Payment of Notes....................................... 49
Section 5.02 SEC Reports............................................ 49
Section 5.03 Compliance Certificates................................ 50
Section 5.04 Maintenance of Office or Agency........................ 51
Section 5.05 Further Instruments and Acts........................... 51
Section 5.06 Liquidation............................................ 52
Section 5.07 Change of Control...................................... 52
Section 5.08 Corporate Existence.................................... 53
Section 5.09 Payment of Taxes and Other Claims...................... 53
Section 5.10 Maintenance of Properties.............................. 54
Section 5.11 Insurance.............................................. 54
Section 5.12 Rating................................................. 54
Section 5.13 Payments for Consent................................... 54
Section 5.14 Limitation on Senior Subordinated Indebtedness......... 55
ARTICLE 6. SUCCESSORS...................................................... 55
Section 6.01 Merger, Consolidation, or Sale of Assets............... 55
Section 6.02 Successor Corporation Substituted...................... 56
ARTICLE 7. DEFAULTS AND REMEDIES........................................... 56
Section 7.01 Events of Default...................................... 56
Section 7.02 Acceleration........................................... 58
Section 7.03 Other Remedies......................................... 58
Section 7.04 Waiver of Past Defaults................................ 58
Section 7.05 Control by Majority.................................... 59
Section 7.06 Limitation on Suits.................................... 59
Section 7.07 Rights of Holders of Notes to Receive Payment.......... 59
Section 7.08 Collection Suit by Trustee............................. 60
Section 7.09 Trustee May File Proofs of Claim....................... 60
Section 7.10 Priorities............................................. 60
Section 7.11 Undertaking for Costs.................................. 61
ARTICLE 8. TRUSTEE......................................................... 61
Section 8.01 Duties of Trustee...................................... 61
Section 8.02 Rights of Trustee...................................... 63
Section 8.03 Individual Rights of Trustee........................... 64
Section 8.04 Trustee's Disclaimer................................... 64
Section 8.05 Notice of Defaults..................................... 64
Section 8.06 Reports by Trustee to Holders of the Notes............. 65
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Section 8.07 Compensation and Indemnity............................. 65
Section 8.08 Replacement of Trustee................................. 66
Section 8.09 Successor Trustee by Merger, Etc....................... 67
Section 8.10 Eligibility; Disqualification.......................... 67
Section 8.11 Preferential Collection of Claims Against Company...... 67
Section 8.12 Co-Trustee............................................. 68
ARTICLE 9. LEGAL DEFEASANCE AND COVENANT DEFEASANCE........................ 68
Section 9.01 Option to Effect Legal Defeasance or Covenant
Defeasance ............................................ 68
Section 9.02 Legal Defeasance and Discharge......................... 69
Section 9.03 Covenant Defeasance.................................... 69
Section 9.04 Conditions to Legal or Covenant Defeasance............. 70
Section 9.05 Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions............... 71
Section 9.06 Repayment to Company................................... 72
Section 9.07 Reinstatement.......................................... 72
Section 9.08 Survival............................................... 72
ARTICLE 10. AMENDMENT, SUPPLEMENT AND WAIVER............................... 73
Section 10.01 Without Consent of Holders of Notes.................... 73
Section 10.02 With Consent of Holders of Notes....................... 74
Section 10.03 Compliance with Trust Indenture Act.................... 75
Section 10.04 Revocation and Effect of Consents...................... 75
Section 10.05 Notation on or Exchange of Notes....................... 76
Section 10.06 Trustee to Sign Amendments, Etc........................ 76
ARTICLE 11. SATISFACTION AND DISCHARGE..................................... 76
Section 11.01 Satisfaction and Discharge of Indenture................ 76
Section 11.02 Application of Trust Money............................. 77
ARTICLE 12. SUBORDINATION.................................................. 78
Section 12.01 Notes Subordinated to Senior Indebtedness.............. 78
Section 12.02 Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation,
Reorganization, Etc., of the Company................... 78
Section 12.03 Holders to Be Subrogated to Right of Holders of Senior
Indebtedness........................................... 80
Section 12.04 Obligations of the Company Unconditional............... 80
Section 12.05 Company Not to Make Payment With Respect to Notes in
Certain Circumstances.................................. 81
Section 12.06 Notice to Trustee...................................... 82
Section 12.07 Application by Trustee of Money Deposited With It...... 82
Section 12.08 Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness........... 83
Section 12.09 Trustee to Effectuate Subordination.................... 83
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Section 12.10 Right of Trustee to Hold Senior Indebtedness........... 83
Section 12.11 Article Not to Prevent Events of Default............... 84
Section 12.12 No Fiduciary Duty Created to Holders of Senior
Indebtedness........................................... 84
Section 12.13 Article Applicable to Paying Agents.................... 84
ARTICLE 13. MISCELLANEOUS.................................................. 84
Section 13.01 Trust Indenture Act Controls........................... 84
Section 13.02 Notices................................................ 84
Section 13.03 Communication by Holders of Notes with Other Holders
of Notes............................................... 86
Section 13.04 Certificate and Opinion as to Conditions Precedent..... 86
Section 13.05 Statements Required in Certificate or Opinion.......... 87
Section 13.06 Rules by Trustee and Agents............................ 87
Section 13.07 No Personal Liability of Directors, Officers, Employees
and Shareholders....................................... 87
Section 13.08 Governing Law.......................................... 87
Section 13.09 Consent to Jurisdiction and Service.................... 88
Section 13.10 No Adverse Interpretation of Other Agreements.......... 88
Section 13.11 Successors............................................. 88
Section 13.12 Severability........................................... 88
Section 13.13 Counterpart Originals.................................. 88
Section 13.14 Table of Contents, Headings, Etc....................... 89
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INDENTURE, dated as of [ ], [1999], by and between
Metromedia Fiber Network, Inc., a Delaware corporation (the "Company"), and U.S.
Bank Trust National Association, a National banking association, as trustee (the
"Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 6.15%
Convertible Subordinated Notes due [2009] (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a global note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
aggregate principal amount of the Notes sold or resold in reliance on Rule 144A.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors or other governing
body of the Company or, if the Company is owned or managed by a single entity,
the
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board of directors or other governing body of such entity, or, in either case,
any committee thereof duly authorized to act on behalf of such board or
governing body.
"Board Resolution" means a duly authorized resolution of the Board
of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participation, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CEDEL Bank" means CEDEL Bank, SA.
"Change of Control" means the occurrence of any of the following:
(i) any "person" or "group" (as such terms are used in Section 13(d)(3) of the
Exchange Act), other than a Permitted Holder, is or becomes the beneficial
owner, directly or indirectly, of 35% or more of the Voting Stock (measured by
voting power rather than by number of shares) of the Company and the Permitted
Holders own, in the aggregate, a lesser percentage of the total Voting Stock
(measured by voting power rather than by number of shares) of the Company than
such person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of the Company (for the purposes of this clause, such other person
shall be deemed to "beneficially own" any Voting Stock of a specified
corporation held by a parent corporation if such other person beneficially owns,
directly or indirectly, more than 35% of the Voting Stock (measured by voting
power rather than by number of shares) of such parent corporation and the
Permitted Holders beneficially own, directly or indirectly, in the aggregate a
lesser percentage of Voting Stock (measured by voting power rather than by
number of shares) of such parent corporation and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent corporation), (ii)
during any period of two consecutive years, Continuing Directors cease for any
reason to constitute a majority of the Board of Directors of the Company, (iii)
the Company consolidates or merges with or into any other Person, or any Person
consolidates with, or merges with or into, the Company, other than a
consolidation or merger (a) of the Company into a Wholly Owned Subsidiary of the
Company or (b) pursuant to a transaction in which the outstanding Voting Stock
of the Company is changed into or exchanged for cash, securities or other
property with the effect that the beneficial owners of the outstanding Voting
Stock of the Company immediately prior to such transaction, beneficially own,
directly or indirectly, at least a majority of the Voting Stock (measured by
voting power rather than number of shares) of the surviving corporation
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immediately following such transaction, (iv) the sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, to any Person other than a
Wholly Owned Subsidiary of the Company or a Permitted Holder or a Related
Person; provided, however, that sales, transfers, conveyances or other
dispositions in the ordinary course of business of capacity on fiber optic or
cable systems owned, controlled or operated by the Company or any of its
Subsidiaries or of telecommunications capacity or transmission rights, rights of
way or conduit acquired by the Company or any of its Subsidiaries for use in the
business of the Company or any of its Subsidiaries, including, without
limitation, for sale, lease, transfer, conveyance or other disposition to any
customer of the Company or any of its Subsidiaries shall not be deemed a
disposition of assets for purposes of this clause (iv), or (v) the adoption of a
plan relating to the total liquidation of the Company.
"Class A Common Stock" means the Class A Common Stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" means the Class B Common Stock, par value
$0.01 per share, of the Company.
"Common Stock" means collectively the Class A Common Stock and the
Class B Common Stock, determined as a single class assuming shares of Class B
Common Stock had been converted into shares of Class A Common Stock.
"Company" means Metromedia Fiber Network, Inc., a Delaware
corporation, and any and all successors thereto.
"Communications Act" means the U.S. federal statute known as the
Communications Act of 1934, as amended by the Telecommunications Act of 1996, as
amended.
"Continuing Directors" means individuals who at the beginning of the
period of determination constituted the Board of Directors of the Company,
together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders 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 or is the designee of any one
of the Permitted Holders or any combination thereof or was nominated or elected
by any such Permitted Holder(s) or any of their designees.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 13.02 hereof or such other address as to which
the Trustee may give notice to the Company.
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"Currency Agreement" means, with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or beneficiary.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, but may bear the Private Placement Legend, if
applicable.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Rule 903(b) of Regulation S.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor Act), and the rules and regulations promulgated thereunder (or
respective successor thereto).
"Franchise Agreements" means (a) the Franchise Agreement, dated as
of December 20, 1993, between the City of New York and National Fiber Network,
Inc., and (b) the Franchise Agreement, dated as of June 28, [1999], by and
between Montgomery County, Maryland, and Metromedia Fiber Network Services,
Inc., as each may be amended, modified or supplemented from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
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"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto, issued in accordance with Article 2 hereof.
"Government Securities" means securities that are (a) direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) of the payment of which the full faith and credit of
the United States of America is pledged, (b) 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, or (c) obligations of a
Person the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any Interest Rate Agreement or Currency
Agreement.
"Holder" means a Person in whose name a Note is registered on the
Registrar's or any co-registrar's books.
"IAI Global Note" means a Global Note in substantially the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee, that shall be initially issued in a denomination
equal to $0, but shall thereafter be revised to represent the outstanding
principal amount of the Notes transferred to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or the balance of the deferred and unpaid purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
(other than letters of credit (or reimbursement agreements in respect thereof),
banker's acceptances and Hedging Obligations) would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person) and, to the extent not
otherwise included, any guarantee by such Person of any Indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall be
(i) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, but the accretion of original issue discount in
accordance with the original terms of Indebtedness issued with an original issue
discount will not be deemed to be an incurrence, and (ii) the principal amount
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thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"In-Region State" shall have the meaning assigned to such term in
Section 271(i)(1) of the Communications Act.
"Initial Purchaser" means Bell Atlantic Investments, Inc., a
Delaware corporation.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" shall have the meaning assigned to that term
in Section 2.01 hereof.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or
beneficiary.
"InterLATA Service" shall have the meaning assigned to such term in
Section 3 of the Communications Act.
"Issue Date" means the date of first issuance of the Notes under the
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, Note interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a Note
interest in, and any filing of or
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agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Person specified in Section 2.03 hereof
as the Note Custodian with respect to the Global Notes or any successor entity
thereto appointed as Note Custodian hereunder and having become such pursuant to
the applicable provision of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Officer" means the President, the Chief Executive Officer, any Vice
President and the Chief Financial Officer of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee and that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
subsidiary of the Company, any Affiliate of the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
CEDEL Bank, a Person who has an account with the Depositary, Euroclear or CEDEL
Bank, respectively (and, with respect to The Depositary Trust Company, shall
include Euroclear and CEDEL Bank).
"Paying Agent" has the meaning provided in Section 2.03, except
that, for the purposes of Article 8, the Paying Agent shall not be the Company
or a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Permitted Holder" means Metromedia Company, its general partners
and their respective Related Persons and Persons that would constitute a Class B
Permitted Holder as defined in the Company's Amended and Restated Certificate of
Incorporation as in effect on the date hereof.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
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"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Record Date" for the interest payable on any Interest Payment Date
means the [ ] or [ ] (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Notes Registration Rights
Agreement, dated as of the date hereof, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Registration Statement" means the Note Registration Statement as
defined in the Registration Rights Agreement.
"Regulated Person" means any "Bell operating company" or any
"affiliate" of a Bell operating company, as such terms are defined in Section 3
of the Communications Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary global Note
in the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and the Regulation S Temporary Global Note Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Regulatory Relief Date" means, with respect to a Holder which is a
Regulated Person, the date on which such Regulated Person has obtained pursuant
to Section 271 of the Communications Act, the approval of the Federal
Communications Commission to provide InterLATA Services in all states that are,
with respect to such Regulated Person, In-Region States (as such term is defined
in Section 271(i)(1) of the
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Communications Act), such approval to be either an affirmative approval or a
waiver from the restrictions of the Communications Act.
"Related Person" means any Person who controls, is controlled by or
is under common control with a Permitted Holder; provided, that for purposes of
this definition, "control" means the beneficial ownership of more than 50% of
the total voting power of a Person normally entitled to vote in the election of
directors, managers or trustees, as applicable, of a Person.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above 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.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend and includes the 144A Global Notes, the IAI Global Note and the
Regulation S Global Note.
"Restricted Note" means either a Restricted Definitive Note or a
Restricted Global Note.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended (or
any successor Act), and the rules and regulations promulgated thereunder (or
respective successor thereto).
"Senior Indebtedness" means the principal of, premium, if any,
interest, and other amounts payable on or in respect of any Indebtedness of the
Company, whether outstanding on the date of original issuance or thereafter
created, incurred or assumed (including, without limitation, the Company's
Series A and Series B 10% Senior Notes due 2008 issued pursuant to the
Indenture, dated as of
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November 25, 1998, by and between the Company and IBJ Schroder Bank & Trust
Company as the same may be amended, supplemented or modified from time to time),
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes. Notwithstanding the foregoing, "Senior Indebtedness" shall not include
(a) Indebtedness evidenced by the Notes, (b) Indebtedness that is pursuant to
the instrument creating such Indebtedness expressly subordinate or junior in
right of payment to any Indebtedness of the Company, (c) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) or Title
11, United States Code, (d) Indebtedness for goods, materials or services
purchased in the ordinary course of business or Indebtedness consisting of trade
account payables or other current liabilities incurred in the ordinary course of
business, (e) Indebtedness of or amounts owed by the Company for compensation to
employees or for services rendered to the Company, or (f) Indebtedness of the
Company to a Wholly Owned Subsidiary or any other Affiliate of the Company or
any of such Affiliate's Wholly Owned Subsidiaries.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12 hereof.
"Stated Maturity" means, with respect to any installment of interest
or principal (including any mandatory sinking fund payment of interest or
principal) on any series of Indebtedness, the date on which such payment of
interest or principal (including any mandatory sinking fund payment of interest
or principal) was scheduled to be paid in the original documentation governing
such Indebtedness, and shall not include any contingent obligations to repay,
redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Stockholders Agreement" means the Stockholders Agreement, dated as
of the date hereof, by and among the Company, the Initial Purchaser and the
Stockholders listed on Schedule I thereto.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof), and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
11
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as set forth in Section 9.03.
"Trading Day" means (a) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national security
exchange, a day on which the New York Stock Exchange or another national
security exchange is open for business, (b) if the applicable security is quoted
on the Nasdaq National Market or another United States automated interdealer
quotation system, a day on which trades may be made on thereon, or (c) if the
applicable security is not so listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means one or more Global Notes in the
form of Exhibit A attached hereto that bears the Global Note Legend and that has
the Schedule of Exchanges of Interests in the Global Note attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.
12
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Accepted Purchased Shares" 4.06
"Authentication Order" 2.02
"Change of Control Offer" 5.07
"Change of Control Payment" 5.07
"Change of Control Payment Date" 5.07
"Closing Price" 4.06
"Conversion Agent" 2.03
"Conversion Date" 4.02
"Conversion Price" 4.01
"Conversion Shares" 4.06
"Covenant Defeasance" 9.03
"Current Market Price" 4.06
"Distribution Date" 4.06
"Default Notice" 12.05
"DTC" 2.03
"Event of Default" 7.01
"ex" date 4.06
"Expiration Time" 4.06
"Fair Market Value" 4.06
"Legal Defeasance" 9.02
"pay the Notes" 12.02
"Paying Agent" 2.03
"Purchased Shares" 4.06
"Registrar" 2.03
"Rights" 4.06
"Tender Expiration Time" 4.06
Section 1.03 Trust Indenture Act Definitions.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture Note Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
13
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used but not otherwise defined in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating; Payment of Interest.
(a) General.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage or
agreements to which the Company is subject. The Notes shall be in denominations
of $1,000 and integral multiples thereof. Each Note shall be dated the date of
its authentication and shall bear interest from its date of issue and shall be
payable semiannually on each [ ] and [ ] (each, an "Interest
Payment Date "), commencing [ ], except as otherwise specified on the
faces of the forms of Notes, attached as Exhibit A hereto.
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The person in whose name any Note (or its predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date (including any Note that is converted after the record
date and on or before the interest payment date) shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer, exchange or conversion subsequent
to the record date and prior to such interest payment date. Interest may, at the
option of the Company, be paid by check mailed to the address of such person as
it appears on the Note register; provided that, with respect to any Holder of an
interest in any Global Note, interest on such Holder's Notes shall be paid by
wire transfer in immediately available funds to Cede & Co., the nominee of the
Depositary, as registered owner of the Restricted Global Notes and the
Regulation S Global Note. The term "Record Date" with respect to any Interest
Payment Date shall mean the [ ] or [ ] preceding said
[ ] or [ ] Interest Payment Dates, respectively.
Interest on the Notes shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and 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. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes.
Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the aggregate principal amount of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, repurchases and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
15
(c) Temporary Global Notes.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Note Custodian, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Distribution Compliance Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Cedel Bank
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Distribution Compliance Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a beneficial ownership interest in a 144A Global Note or an IAI
Global Note bearing a Private Placement Legend, all as contemplated by Section
2.06(a)(ii) hereof), and (ii) an Officers' Certificate and an authentication
order pursuant to Section 2.02 hereof from the Company. Following the
termination of the Distribution Compliance Period, the Company shall instruct
the Trustee that the Distribution Compliance Period has expired and shall
instruct the Trustee to exchange beneficial interests in the Regulation S
Temporary Global Note for beneficial interests in Regulation S Permanent Global
Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and CEDEL Bank Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of CEDEL Bank" and "Customer Handbook" of CEDEL Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes that are held by
Participants through Euroclear or CEDEL Bank.
Section 2.02 Designation; Amount and Issue of Notes; Execution and
Authentication.
The Notes shall be designated as "6.15% Convertible Subordinated
Notes due [2009]." Notes not to exceed the aggregate principal amount of
$[ ] upon the execution of this Indenture, or from time to time
thereafter, may be executed
16
by the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and make available for delivery said Notes upon the
written order (an "Authentication Order") of the Company, signed by two Officers
or one Officer and the Secretary or an Assistant Security of the Company by
manual or facsimile signature, without any further action by the Company.
If an Officer, Secretary or Assistant Secretary whose signature is
on a Note no longer holds that office at the time a Note is authenticated, the
Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency where Notes may be presented for payment (the "Paying Agent"),
and an office or agency where Notes may be presented for conversion (the
"Conversion Agent"). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar, the term "Paying Agent" includes any additional paying agent, and
the term "Conversion Agent" includes any additional conversion agent. The
Company may change any Paying Agent, Conversion Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or Conversion Agent.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar,
Paying Agent and Conversion Agent and to act as Note Custodian with respect to
the Global Notes and as agent for service of notice and demands.
17
The Trustee is authorized to enter into a letter of representations
with DTC in the form provided to the Trustee by the Company and to act in
accordance with such letter.
Section 2.04 Paying Agent to Hold Money in Trust.
Not later than each due date of principal, premium, if any, and
interest on the Notes, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium, if any,
and interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, or interest on the Notes, and will notify the Trustee
of any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all such money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all
such money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
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 the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee a notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not
18
appointed by the Company within 120 days after the date of such notice from the
Depositary or (ii) the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee; provided, however, that
in no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to the expiration of the Distribution
Compliance Period. Upon the occurrence of either of the preceding events in (i)
or (ii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.06, 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to Sections 2.06, 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06 hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes.
The transfer and exchange of beneficial interests in the
Global Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein and therein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Distribution Compliance Period,
transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than the Initial Purchaser). Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order
19
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to
the Registrar containing information regarding the Person in whose name
such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided, however, that in no event
shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior to
the expiration of the Distribution Compliance Period. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests
in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
20
(iv) Transfer and Exchange of Beneficial Interests in Restricted
Global Notes for Beneficial Interests in Unrestricted Global Notes. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such transfer is effected pursuant to the Registration
Statement in accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Company or the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to
the Company or the Registrar, as applicable, to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (A) or (B)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (A) or (B) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
21
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
22
upon confirmation of such receipt, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained
therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to the expiration
of the Distribution Compliance Period.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such transfer is effected pursuant to the Registration
Statement in accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement
23
Legend, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the Company
or the Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Company or the
Registrar, as applicable, to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
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(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
upon confirmation of such receipt, the Trustee shall cancel the Restricted
Definitive Note, increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, and in the case of
clause (C) above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
25
(A) such transfer is effected pursuant to the Registration
Statement in accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Company or Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Company or Registrar, as applicable, to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Note is effected pursuant to subparagraphs
(ii)(A), (ii)(B) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with
26
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exception from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) any such transfer is effected pursuant to the Registration
Statement in accordance with the Registration Rights Agreement; or
(B) the Registrar receives the following:
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(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if the
Company or Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company or Registrar, as applicable, to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(f) [Intentionally Omitted]
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF
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SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES
ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF ANY
NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED
STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE
29
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND
(II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING IN THE INDENTURE GOVERNING THIS NOTE IS
COMPLETE AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. 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."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) to this Section 2.06
(and all Notes issued in exchange thereof or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
30
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall, subject to the other provisions of this Section 2.06, execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the
Company's order or at the Registrar's request in accordance with the
provisions of Section 2.02 hereof.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, 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 exchange or transfer pursuant
to Sections 2.10, 3.06, 5.07 and 10.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
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(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 Business Days before the day of the mailing of a
notice of redemption or repurchase under Section 3.02 or 5.07 hereof, as
applicable, and ending at the close of business on such day, (B) to
register the transfer of or to exchange any Note so selected for
redemption or repurchase in whole or in part, except the unredeemed
portion of any Note being redeemed or repurchased in part or (C) to
register the transfer of or to exchange a Note between a Record Date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the reasonable
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto, and may charge for its expenses (including the fees and expenses of the
Trustee and reasonable attorneys' fees and expenses) in replacing a Note.
32
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
If any mutilated, lost, stolen or destroyed Note has become or is
about to become due and payable, the Company, in its sole discretion, may,
instead of issuing a new Note, pay such Note.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser or protected purchaser.
If the principal amount of any Note is considered paid under Section
5.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereto) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, or by any Subsidiary or Affiliate of the Company,
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate
33
definitive Notes in exchange for temporary Notes. Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent Special Record Date, in each case at the rate provided
in the Notes and in Section 5.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such Special Record Date and payment date, provided that no such Special
Record Date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the Special Record Date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the Special Record Date, the related payment date and the
amount of such interest to be paid. The defaulted interest shall be considered
paid upon deposit with the Trustee or the Paying Agent of an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted
interest, and interest on such defaulted interest shall thereafter cease to
accrue from that date. The Company may make payment of any defaulted interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or other trading market on which the securities of the Company are
listed or traded, and upon such notice as may be required by such exchange or
trading market, if, after written notice given by the Company to the Trustee of
the proposed payment, such manner of payment shall be deemed practicable by the
Trustee.
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Section 2.13 CUSIP Numbers.
The Company in issuing the Notes shall use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed, (iv) the redemption price, and (v) the CUSIP
numbers of the Notes to be redeemed.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed or purchased among the Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis or by lot. In the event of a partial
redemption by lot, the particular Note to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
provided, however, that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
35
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at such Holder's
registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, any Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
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Section 3.05 Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Record Date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such Record Date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 5.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate,
for the Holder at the expense of the Company, a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) The Notes shall not be redeemable at the Company's option prior
to ________________, 200[4].(1) Thereafter, the Notes shall be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 45 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest thereon to the applicable redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date), if redeemed during the twelve-month period
beginning on _____________ (____________(1) for the year 200[4]) of the years
indicated below:
- ----------
(1) Two days following the first Interest Payment Date after the fifth
anniversary of the Closing Date.
37
Percentage of
Principal
Year Amount
- ---- -------
200[4].................................................... 102.733%
200[5].................................................... 102.050%
200[6].................................................... 101.367%
200[7].................................................... 100.683%
200[8] and thereafter..................................... 100.000%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
ARTICLE 4.
CONVERSION
Section 4.01 Conversion Privilege.
Subject to the further provisions of this Section 4.01, a Holder of
a Note may convert such Note at the Conversion Price then in effect into Class A
Common Stock (i) at any time after the Regulatory Relief Date, if at such time
such Holder is a Regulated Person, or (ii) at any time, if such Holder is not a
Regulated Person; provided, however, that the Initial Purchaser or any of its
Affiliates or any Holder that acquires Notes pursuant to any Transfer (as
defined in the Stockholders Agreement) other than pursuant to a Public Resale
(as defined in the Stockholders Agreement) may not convert such Note if, after
giving effect to such conversion, such Holder would be deemed to be an
"affiliate" as that term is defined in, and for the purposes of, either of the
Franchise Agreements; provided, further, that, if such Note is called for
redemption pursuant to Article 3, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the redemption date
for such Note (unless the Company shall default in making the redemption payment
when due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Note is redeemed); provided,
further, that, if the Holder of a Note tenders such Note pursuant to a Change of
Control Offer, such Note may only be converted if such Holder properly withdraws
its election to participate in the Change of Control Offer prior to consummation
of the Change of Control Offer. The number of shares of Class A Common Stock
issuable upon conversion of a Note shall be determined by dividing the principal
amount of the Note or portion thereof surrendered for conversion by the
Conversion Price in effect on the
38
Conversion Date. The initial conversion price shall be $34.00 and is subject to
adjustment as provided in this Article 4 (the "Conversion Price").
A Holder may convert a portion of a Note equal to $1,000 or any
integral multiple thereof. Provisions of this Indenture that apply to conversion
of all of a Note also apply to conversion of a portion of a Note.
A Holder of Notes is not entitled to any rights of a holder of Class
A Common Stock until such Holder has converted its Notes to Class A Common
Stock, and only to the extent such Notes are deemed to have been converted into
Class A Common Stock pursuant to this Article 4.
Section 4.02 Conversion Procedure.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice on the back of the Note and deliver such notice to the
Conversion Agent; (b) surrender the Note to the Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Registrar or
the Conversion Agent, and (d) pay any transfer or similar tax, if required
pursuant to Section 4.04 hereof. The date on which the Holder satisfies all of
those requirements is the "Conversion Date." As soon as practicable after the
Conversion Date, the Company shall deliver to the Holder through the Conversion
Agent a certificate for the number of whole shares of Class A Common Stock
issuable upon the conversion, payment for accrued interest on such Note to the
extent required by this Section 4.02 and cash in lieu of any fractional shares
pursuant to Section 4.03. The Company may, at any time and as a condition to
delivering such shares of Class A Common Stock, require any Holder to deliver a
representation and warranty made to the Company and an officer's certificate
certifying as to whether or not such Holder is a Regulated Person as of the
Conversion Date and certifying the number of issued and outstanding shares of
Common Stock "Beneficially Owned" (as defined in Rule 13d-3 under the Exchange
Act) by such Holder as of the Conversion Date. The Company may also rely upon
the stock ledger and corporate records of the Company. The Trustee shall have no
obligation to make any such determination.
The person in whose name the certificate is registered shall be
deemed to be a shareholder of record on the Conversion Date; provided, however,
that no surrender of a Note on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Class A Common Stock upon such conversion as
the record holder or holders of such shares of Class A Common Stock on such
date, but such surrender shall be effective to constitute the person or persons
entitled to receive such shares of Class A Common Stock as the record holder or
holders thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; provided, further, that such
conversion shall be at the Conversion Price in effect on the Conversion Date as
if the stock transfer books of the Company had not
39
been closed. Upon conversion of a Note, such person shall no longer be a Holder
of such Note.
If any Holder surrenders a Note for conversion after the close of
business on the record date for the payment of an installment of interest and
before the close of business on the related interest payment date, the Company
shall pay accrued interest through the Conversion Date to the Holder of such
Note on such record date.
If a Holder converts more than one Note at the same time, the number
of shares of Class A Common Stock issuable upon the conversion shall be based on
the aggregate principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Note equal in principal amount to the unconverted portion of the Note
surrendered.
Section 4.03 Fractional Shares.
The Company will not issue fractional shares of Class A Common Stock
upon conversion of Notes. In lieu thereof, the Company will pay an amount in
cash based upon the Closing Price of the Class A Common Stock on the Trading Day
immediately prior to the Conversion Date.
Section 4.04 Taxes on Conversion.
If a Holder converts a Note, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of shares of Class A
Common Stock upon such conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificate representing the Class A Common Stock being issued in a name other
than the Holder's name until the Conversion Agent receives a sum sufficient to
pay any tax which will be due because the shares are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any tax withholding
required by law or regulation.
Section 4.05 Company to Provide Stock.
The Company shall, prior to issuance of any Notes hereunder, and
from time to time as it may be necessary, reserve, out of its authorized but
unissued Class A Common Stock, a sufficient number of shares of Class A Common
Stock to permit the conversion of all outstanding Notes into shares of Class A
Common Stock.
All shares of Class A Common Stock delivered upon conversion of the
Notes shall be newly issued shares or treasury shares, shall be duly authorized,
40
validly issued, fully paid and nonassessable and shall be free from preemptive
rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of shares of Class A
Common Stock upon conversion of Notes, if any, and will list or cause to have
quoted such shares of Class A Common Stock on each national securities exchange
or in the over-the-counter market or such other market on which the Class A
Common Stock is then listed or quoted.
Section 4.06 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the
Company as follows:
(a) In case the Company shall (i) pay a dividend in shares of Class
A Common Stock to the holders of the Class A Common Stock, (ii) make a
distribution in shares of Class A Common Stock to the holders of the Class A
Common Stock, (iii) subdivide or split its outstanding Class A Common Stock into
a smaller number of shares, or (iv) combine its outstanding Class A Common Stock
into a smaller number of shares, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the Holder of any Note thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Class A Common Stock which it would have owned or been entitled to receive had
such Note been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (a) shall become effective as of the
close of business on the record date in the case of a dividend in shares or
distribution and shall become effective as of the close of business on the
effective date in the case of a subdivision, split or combination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Class A Common Stock entitling them (for a
period commencing no earlier than the record date described below and expiring
not more than 60 days after such record date) to subscribe for or purchase
shares of Class A Common Stock (or securities convertible into Class A Common
Stock) at a price per share less than the Current Market Price per share of
Class A Common Stock (as determined in accordance with subsection (g) of this
Section 4.06) at the record date for the determination of shareholders entitled
to receive such rights or warrants, the Conversion Price in effect as of the
close of business on the record date thereto shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
on the record date by a fraction of which the numerator shall be the number of
shares of Class A Common Stock outstanding on such record date, plus the number
of shares which the aggregate offering price of the total number of shares of
Class A Common Stock so offered (or the aggregate conversion price of the
convertible notes so offered) would purchase at such Current Market Price, and
of which the denominator shall be the number of shares of Class A Common Stock
41
outstanding on such record date plus the number of additional shares of Class A
Common Stock offered (or into which the convertible notes so offered are
convertible). Such adjustment shall be made successively whenever any such
rights, warrants or convertible notes are issued, and shall become effective as
of the close of business on such record date. If at the end of the period during
which such rights or warrants are exercisable not all rights or warrants shall
have been exercised, the adjusted Conversion Price shall be immediately
readjusted to what it would have been based upon the number of additional shares
of Class A Common Stock actually issued (or the number of shares of Class A
Common Stock issuable upon conversion of convertible Notes actually issued).
(c) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock, cash (excluding (x) any regular cash
dividend on the Common Stock to the extent that the aggregate cash dividend per
share of Common Stock in any four fiscal quarters does not exceed the greater of
(A) the amount per share of Common Stock of the cash dividend on the Common
Stock for the preceding four fiscal quarters to the extent that such dividend
for the preceding four fiscal quarters did not require any adjustment of the
Conversion Price pursuant to this Section 4.06(c) (as adjusted to reflect
subdivisions or combinations of the Common Stock), and (B) 3.75% of the
arithmetic average of the Closing Prices (as set forth in Section 4.06(g))
during the ten Trading Days immediately prior to the date of declaration of such
dividend, (y) any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, and
(z) any cash that is distributed as part of a distribution requiring a
Conversion Price adjustment pursuant to Section 4.06(e)), then, in such case,
the Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the record date of such action by a fraction of which
the numerator shall be the Current Market Price of the Class A Common Stock on
such record date less the amount of cash so distributed (and not excluded as
provided above) applicable to one share of Common Stock and the denominator
shall be Current Market Price of the Class A Common Stock on such record date,
such decrease shall be effective immediately prior to the opening of business on
the day following the record date of such action; provided, however, that in the
event the portion of cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price of the Class A Common Stock
on such record date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive upon
conversion the amount of cash such Holder would have received had such Holder
converted each Note on the record date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such
dividend or distribution had not been declared. If any adjustment is required to
be made as set forth in this Section 4.06(c) as a result of a distribution that
is a regular dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the amount of the regular cash dividend permitted to
be excluded pursuant hereto. If an adjustment is required to be made as set
forth in this Section 4.06(c) above as a
42
result of a distribution that is not a regular dividend, such adjustment shall
be based upon the full amount of the distribution.
(d) In case a tender or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders of consideration per share of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) that, as of the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), exceeds the Current Market Price of the Class A Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Price shall be
decreased so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the product of the number of Class A
Common Stock outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the Current Market Price of the Class A Common
Stock on the Trading Day next succeeding the Expiration Time, less the fair
market value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and the
denominator shall be the product of the number of Class A Common Stock
outstanding (less any Purchased Shares) on the Expiration Time and the Current
Market Price of the Class A Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event that
the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender or exchange offer has not been made.
(e) In case the Company shall distribute to all or substantially all
holders of its Class A Common Stock any shares of capital stock of the Company
(other than Class A Common Stock), evidences of indebtedness or other non-cash
assets (including securities of any Person), or shall distribute to all holders
of its Class A Common Stock rights or warrants to subscribe for or purchase any
of its securities (excluding those referred to in subsection (b) of this Section
4.06), then in each such case the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect as of the close of business on the record date for such distribution by a
fraction of which the numerator shall be the Current Market Price of the Class A
Common Stock on the record date mentioned below less the fair market value on
such record date (as reasonably determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and set
forth in a Board Resolution delivered to the
43
Trustee in an Officers' Certificate) of the portion of the capital stock,
evidences of indebtedness or other assets so distributed or of such rights or
warrants applicable to one share of Class A Common Stock (determined on the
basis of the number of shares of Class A Common Stock outstanding on the record
date), and of which the denominator shall be the Current Market Price per share
(as determined in accordance with subsection (g) of this Section 4.06) of the
Class A Common Stock on such record date. Such adjustment shall become effective
as of the close of business on the record date for the determination of
shareholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the Company shall distribute rights or warrants
(other than those referred to in subsection (b) of this Section 4.06) ("Rights")
pro rata to holders of Class A Common Stock, the Company may, in lieu of making
any adjustment pursuant to this Section 4.06, make proper provision so that each
holder of a Note who converts such Note (or any portion thereof) after the
record date for such distribution and prior to the expiration or redemption of
the Rights shall be entitled to receive upon such conversion, in addition to the
shares of Class A Common Stock issuable upon such conversion (the "Conversion
Shares"), a number of Rights to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of Rights of
separate certificates evidencing such Rights (the "Distribution Date"), the same
number of Rights to which a holder of a number of shares of Class A Common Stock
equal to the number of Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions of and applicable to the
Rights and (ii) if such conversion occurs after the Distribution Date, the same
number of Rights to which a holder of the number of shares of Class A Common
Stock into which the principal amount of the Note so converted was convertible
as of the close of business on the Distribution Date would have been entitled on
the Distribution Date in accordance with the terms and provisions of and
applicable to the Rights.
(f) In case of a tender or exchange offer made by a Person other
than the Company or any Subsidiary of the Company for an amount which increases
the offeror's ownership of Class A Common Stock to more than 35% of the Class A
Common Stock outstanding and shall involve the payment by such Person of
consideration per share of Class A Common Stock having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a Board Resolution) at the last time (the "Tender Expiration
Time") tenders or exchanges may be made pursuant to such tender or exchange
offer (as it shall have been amended) that exceeds the Current Market Price per
share of the Class A Common Stock on the Trading Day next succeeding the Tender
Expiration Time, and in which, as of the Tender Expiration Time, the Board of
Directors is not recommending rejection of the offer, the Conversion Price shall
be decreased so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the Tender Expiration Time
by a fraction of which the numerator shall be the number of shares of Class A
Common Stock outstanding (including any tendered or exchanged shares) at the
Tender Expiration Time multiplied by the Current Market Price of the Class A
Common Stock on the Trading Day next succeeding the Tender Expiration Time and
the denominator shall be the
44
sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Tender Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Accepted Purchased Shares") and (y) the product of the number of shares of
Class A Common Stock outstanding (less any Accepted Purchased Shares) at the
Tender Expiration Time and the Current Market Price of the Class A Common Stock
on the Trading Day next succeeding the Tender Expiration Time, such decrease to
become effective immediately prior to the opening of business on the day
following the Tender Expiration Time. In the event that such Person is obligated
to purchase shares pursuant to any such tender or exchange offer, but such
Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 4.06(f)) shall not be made if, (a) as of
the Tender Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Company to engage in any transaction
described in Article 6 or (b) if the Initial Purchaser does not beneficially own
all of the Notes.
(g) For purposes of this Section 4.06, the following terms shall
have the meaning indicated:
(i) "Closing Price" with respect to any securities on any date shall
mean the closing sale price, regular way, on such day or, in case no such
sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in each case on the New York Stock Exchange,
or, if such security is not listed or admitted to trading on such
Exchange, on the principal security exchange or quotation system in the
United States on which such security is quoted or listed or admitted to
trading, or, the average of the closing bid and asked prices of such
security on the over-the-counter market on the day in question as reported
by the Nasdaq National Market or a similar generally accepted reporting
service, or if not so available, in such manner as furnished by any New
York Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose, or a price determined in good faith by the
Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.
(ii) "Current Market Price" shall mean the average of the daily
Closing Prices per share of Class A Common Stock for the ten consecutive
Trading Days immediately prior to the date in question; provided, however,
that (A) if the "ex" date (as hereinafter defined) for any event (other
than the issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to this Section
4.06 occurs during
45
such ten consecutive Trading Days, the Closing Price for each Trading Day
prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the fraction by which the Conversion
Price is so required to be adjusted as a result of such other event, and
(B) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to
the Conversion Price pursuant to Section 4.06(a), (b), (c), (d) or (e)
occurs on or after the "ex" date for the issuance or distribution
requiring such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the same fraction
by which the Conversion Price is so required to be adjusted as a result of
such other event, and (C) if the "ex" date for the issuance or
distribution requiring such computation is prior to the day in question,
after taking into account any adjustment required pursuant to clause (A)
or (B) of this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by adding thereto the amount of any cash
and the Fair Market Value (as determined by the Board of Directors in a
manner consistent with any determination of such value for purposes of
Section 4.06(d), (e) or (f), whose determination shall be conclusive and
described in a resolution of the Board of Directors) of the evidences of
indebtedness, shares of capital stock or assets being distributed
applicable to one share of Class A Common Stock as of the close of
business on the day before such "ex" date. For purposes of any computation
under Section 4.06(f), the Current Market Price of the Class A Common
Stock on any date shall be deemed to be the average of the daily Closing
Prices per share of Class A Common Stock for such day and the next two
succeeding Trading Days; provided, however, that if the "ex" date for any
event (other than the tender or exchange offer requiring such computation)
that requires an adjustment to the Conversion Price pursuant to Section
4.06(a), (b), (c), (d), (e) or (f) occurs on or after the Expiration Time
or Tender Expiration Time, as the case may be, for the tender or exchange
offer requiring such computation and prior to the day in question, the
Closing Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price by the
same fraction by which the Conversion Price is so required to be adjusted
as a result of such other event. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or distribution,
means the first date on which the Class A Common Stock trades regular way
on the relevant exchange or in the relevant market from which the Closing
Price was obtained without the right to receive such issuance or
distribution, (2) when used with respect to any subdivision or combination
of shares of Class A Common Stock, means the first date on which the Class
A Common Stock trades regular way on such exchange or in such market after
the time at which such subdivision or combination becomes effective, and
(3) when used with respect to any tender or exchange offer, means the
first date on which the Class A Common Stock trades regular way on such
exchange or in such market after the Expiration Time or Tender Expiration
Time, as the case may be, of such offer.
46
(iii) "Fair Market Value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(h) In any case in which this Section 8(e) shall require that an
adjustment be made on a record date established for purposes of this Section
4.06, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 4.09) issuing to the Holder of any Note converted after
such record date but prior to the issue date, the shares of Class A Common Stock
and other capital stock of the Company issuable upon such conversion over and
above the shares of Class A Common Stock and other capital stock of the Company
issuable upon such conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence prepared by the Company of the right to receive such
shares. If any distribution in respect of which an adjustment to the Conversion
Price is required to be made as of the record date or effective date therefor is
not thereafter made or paid by the Company for any reason, the Conversion Price
shall be readjusted to the Conversion Price which would then be in effect if
such record date had not been fixed or such effective date had not occurred.
Section 4.07 No Adjustment.
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 4.07 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
No adjustment need be made for a transaction referred to in Section
4.06 if all Holders are entitled to participate in the transaction on a basis
and with notice to same extent as holders of Class A Common Stock participate in
the transaction. The Company shall give notice to the Trustee of any such
determination.
No adjustment need be made for rights to purchase Class A Common
Stock or issuances of Class A Common Stock pursuant to a Company plan for
reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or a change
to no par value of the Class A Common Stock.
To the extent that the Notes become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
47
Section 4.08 Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 4.06, as it in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or Notes or
distributions of Notes convertible into or exchangeable for stock hereafter made
by the Company to its stockholders shall not be taxable, provided that such
reduction does not have an adverse effect for tax purposes, or otherwise, on
holders of the Notes.
Section 4.09 Notice of Adjustment.
Whenever the Conversion Price is adjusted, the Company shall
promptly mail to Holders a notice of the adjustment and file with the Trustee an
Officers' Certificate briefly stating the facts requiring the adjustment, the
manner of computing it and the new Conversion Price.
Section 4.10 Notice of Certain Transactions.
In the event that:
(a) the Company takes any action which would require an adjustment
in the Conversion Price;
(b) the Company consolidates or merges with, or transfers all or
substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(c) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice before such date to the same extent as such notice is mailed to the
stockholders of the Company. Failure to mail such notice or any defect therein
shall not affect the validity of any transaction referred to in clause (a), (b)
or (c) of this Section 4.10.
Section 4.11 Effect of Reclassification, Consolidation, Merger or
Sale, Transfer or Conveyance on Conversion Privilege.
If any of the following shall occur, namely: (a) any
reclassification or change of shares of Class A Common Stock issuable upon
conversion of the Notes (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination, or any other change for which an adjustment is provided in
Section 4.06); (b) any consolidation or merger to which the Company is a party
other than a merger in which the Company is the
48
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of Class A Common Stock; or (c) any sale,
transfer or conveyance of all or substantially all of the property and assets of
the Company to any Person, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Note then outstanding shall have the right to convert such Note into the
kind and amount of shares of stock and other Notes and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale,
transfer or conveyance by a holder of the number of shares of Class A Common
Stock deliverable upon conversion of such Note immediately prior to such
reclassification, change, consolidation, merger, sale, transfer or conveyance.
Such supplemental indenture shall provide for adjustments of the Conversion
Price which shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Price provided for in this Article 4. If, in the
case of any such consolidation, merger, sale, transfer or conveyance, the stock
or other Notes and property (including cash) receivable thereupon by a holder of
Class A Common Stock include shares of stock or other Notes and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale, transfer or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Notes as the Board of Directors shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 4.11 shall similarly
apply to successive consolidations, mergers, sales, transfer or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or other Notes or property (including cash) receivable
by Holders of the Notes upon the conversion of their Notes after any such
reclassification, change, consolidation, merger, sale, transfer or conveyance,
any adjustment to be made with respect thereto and that all conditions precedent
have been complied with, and (y) an Opinion of Counsel that all conditions
precedent have been complied with.
Section 4.12 Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment under
this Article 4 should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness
of any such adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.09. The
Trustee makes no representation as to the validity or value of any Notes or
assets issued upon conversion of Notes, and the
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Trustee shall not be responsible for the Company's failure to comply with any
provisions of this Article 4.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.
Section 4.13 Voluntary Reduction.
The Company from time to time may reduce the Conversion Price by any
amount for any period of time if the period is at least 20 days or such longer
period as may be required by law and if the reduction is irrevocable during the
period; provided, however, that in no event may the Conversion Price be less
than the par value of a share of Class A Common Stock.
ARTICLE 5.
COVENANTS
Section 5.01 Payment of Notes.
The Company shall promptly make all payments of principal, interest
and premium, if any, in respect of the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of principal, interest
or premium, if any, shall be considered paid on the date it is due if the Paying
Agent (other than the Company) holds by 11:00 a.m., New York City time, on that
date money in immediately available funds, deposited by the Company or an
Affiliate thereof, sufficient to pay all principal, interest and premium, if
any. The Company shall pay interest (including post-petition interest in any
proceeding under Bankruptcy Law) on overdue principal and premium, if any, at
the rate equal to 1% per annum in excess of the then applicable interest rate on
the Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under Bankruptcy Law) on overdue installments of
interest at the same rate to the extent lawful.
Section 5.02 SEC Reports.
(a) The Company shall file all reports and other information and
documents which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, and at the same time, the Company shall file copies
of all such reports, information and other documents with the Trustee.
(b) In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as
any
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Notes are outstanding, the Company will furnish to the Trustee and the Holders
of the Notes (i) all quarterly and annual financial and other information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its Consolidated Subsidiaries and, with respect to the annual information only,
a report thereon by the Company's certified independent accountants, and (ii)
all current reports that would be required to be filed with the SEC on Form 8-K
if the Company were required to file such reports, in each case within the time
periods specified in the SEC's rules and regulations. In addition, whether or
not required by the rules and regulations of the SEC, the Company will file a
copy of all such information and reports with the SEC for public availability
within the time periods specified in the SEC's rules and regulations (unless the
SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. The Company shall at
all times comply with TIA Section 314(a).
(c) For so long as any Notes remain outstanding (and regardless of
the penultimate sentence of paragraph (b) above), the Company shall furnish to
the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 5.03 Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
(b) So long as not contrary to the then current recommendation of
the American Institute of Certified Public Accountants, the year-end financial
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statements delivered pursuant to Section 5.03(a) hereof shall be accompanied by
a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Articles 4, 5 or 6 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 5.04 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its 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 designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
Section 5.05 Further Instruments and Acts.
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Upon request of the Trustee, the Company will execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purposes of this Indenture.
Section 5.06 Liquidation.
The Company shall not adopt any plan of liquidation which provides
for, contemplates or the effectuation of which is preceded by (A) the sale,
lease, conveyance or other disposition of all or substantially all the assets of
the Company otherwise than substantially as an entirety in accordance with
Article 6 and (B) the distribution of all or substantially all of the proceeds
of such sale, lease, conveyance or other disposition and the remaining assets of
the Company to holders of Class A Common Stock of the Company, unless the
Company shall in connection with the adoption of such plan make provision for,
or agree that prior to making any liquidating distributions it will make
provision for, the satisfaction of the Company's obligations under this
Indenture and under the Notes as to the payment of principal, interest and
premium, if any, thereof.
Section 5.07 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to purchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at a purchase price in
cash equal to 100% of the aggregate principal amount thereof (the "Change of
Control Payment") plus accrued and unpaid interest and premium, if any, thereon
to the date of purchase (subject to the right of Holders of record on the
relevant Record Date to receive interest and premium, if any, due on the
relevant Interest Payment Date), provided, however, that the Company shall not
be obligated to repurchase Notes pursuant to this covenant in the event that it
has exercised its rights to redeem all of the Notes as described in Section 3.07
hereof. Within 30 days following any Change of Control, the Company will mail a
notice to each Holder (with a copy to the Trustee) describing the transaction or
transactions that constitute the Change of Control and offering to purchase
Notes on the date specified in such notice, which date shall be no earlier than
30 and no later than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"), in accordance with the procedures required by this
Indenture and described in such notice.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws and regulations are applicable in connection with the purchase of
Notes as a result of a Change of Control. To the extent that the provisions of
any securities laws or regulations conflict with any of the provisions of this
Section 5.07, the Company will comply with the applicable securities laws and
regulations and will be deemed not to have breached its obligations under this
covenant by virtue thereof.
53
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment plus accrued and unpaid
interest and premium, if any, thereon in respect of all Notes or portions
thereof so tendered and (3) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company.
The Paying Agent will promptly mail or deliver to each Holder of Notes so
tendered the Change of Control Payment plus accrued and unpaid interest and
premium, if any, thereon for such Notes, and upon written direction of the
Company, the Trustee will promptly authenticate and mail or deliver (or cause to
be transferred by book entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of Notes surrendered, if any, provided that
each such new Note will be in a principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) Notwithstanding anything to the contrary set forth in this
Section 5.07, the Company shall not be required to make a Change of Control
Offer upon the occurrence of a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 5.07, and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
Section 5.08 Corporate Existence.
Subject to Article 6, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate,
partnership or other existence, rights (charter and statutory), licenses and
franchises of the Company and each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company and each of its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
if the Board of Directors shall determine in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders.
Section 5.09 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries;
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 whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings
54
promptly instituted and diligently concluded and shall not have been finally
determined or the period within which such proceedings may be initiated shall
not have expired.
Section 5.10 Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Subsidiary, or used, useful or held for use in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or any Subsidiary from discontinuing the
maintenance of any of such properties, if such discontinuance or disposal is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any of its Subsidiaries and not disadvantageous in any material
respect to the Holders.
Section 5.11 Insurance.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurance, believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
Section 5.12 Rating.
The Company shall use its reasonable best efforts to have the Notes
rated by an established rating agency (which, for so long as is commercially
reasonable to do so, will be either Standard & Poor's Rating Group, a division
of McGraw-Hill, Inc., and Moody's Investors Service) as requested by the Initial
Purchaser and to maintain a rating through and including the Stated Maturity for
the Notes; provided, however, that the Company shall not be required to maintain
a specified rating.
Section 5.13 Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Notes unless such consideration is offered to be paid or is paid to all Holders
of the Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
55
Section 5.14 Limitation on Senior Subordinated Indebtedness.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Indebtedness unless such Indebtedness is pari
passu with, or subordinated in right of payment to, the Notes; provided that the
foregoing limitation shall not apply if any of the Notes are held by Persons
other than the Initial Purchaser or its Affiliates.
ARTICLE 6.
SUCCESSORS
Section 6.01 Merger, Consolidation, or Sale of Assets.
(a) The Company shall not, directly or indirectly, consolidate or
merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related transactions, to another
Person unless: (i) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Registration Rights Agreement, the Notes, and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) no Default or Event of Default (or an event that, with the
passing of time or giving of notice or both, would constitute an Event of
Default) shall exist or shall occur immediately after giving effect on a pro
forma basis to such transaction; and (iv) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such supplemental indenture (if
any) comply with the Indenture. The Company shall not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. The provisions of this covenant will
not be applicable to a sale, assignment, transfer, conveyance or other
disposition of assets solely between or among the Company and its Wholly Owned
Subsidiaries.
(b) For purposes of this Article 6, the transfer (by assignment,
sale or otherwise) of all or substantially all of the properties and assets of
one or more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
56
Section 6.02 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 6.01
hereof, the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to and (except
in the case of a lease) be substituted for (so that from and after the date of
such consolidation, merger or transfer, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor Person and not
to the Company), and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
herein as the Company, and (except in the case of a lease) the Company shall be
released from the obligations under the Notes and this Indenture except with
respect to any obligations that arise from, or are related to, such transaction.
ARTICLE 7.
DEFAULTS AND REMEDIES
Section 7.01 Events of Default.
"Events of Default" are:
(a) default for 30 days in the payment of interest on the Notes
(whether or not prohibited by Article 12 hereof);
(b) default in the payment of the principal of, or premium, if any,
on the Notes when due at maturity, upon redemption or otherwise, including
failure by the Company to purchase the Notes when required under Section
5.07 hereof (whether or not prohibited by Article 12 hereof), or to
deliver Class A Common Stock upon the conversion of the Notes when
required under Section 4.02 hereof;
(c) failure by the Company for 60 days after notice to comply with
any of its other agreements in this Indenture or the Notes;
(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 of its Subsidiaries
(or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the Issue Date, which default results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the
amount of any such Indebtedness, together with the amount of any other
such Indebtedness or the maturity of which has been so accelerated,
aggregates $15.0 million or more;
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(e) failure by the Company or any of its Subsidiaries to pay final
judgments not subject to appeal aggregating in excess of $15.0 million
(net of applicable insurance coverage which is acknowledged in writing by
the insurer), which judgments are not paid, vacated, discharged or stayed
for a period of 60 days;
(f) the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary:
(i) commences a voluntary case under any Bankruptcy Law,
(ii) consents to the entry of an order for relief against it
in an involuntary case under any Bankruptcy Law,
(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) generally is not paying its debts as they become due; and
(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 of its
Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary,
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, or for all or
substantially all of the property of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive
days.
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Section 7.02 Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (f) or
(g) of Section 7.01 hereof occurs with respect to the Company or any Significant
Subsidiary, all outstanding Notes shall be due and payable immediately without
further action or notice. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
Section 7.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 7.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes (or, with respect to a provision of this Indenture
that may only be amended by the Holders of not less than 50% in aggregate
principal amount of the then outstanding Notes, the Holders of not less than 50%
in aggregate principal amount of the then outstanding Notes) by written notice
to the Trustee may on behalf of the Holders of all of the Notes waive an
existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium or interest on, the Notes (including in connection with an offer to
purchase). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
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Section 7.05 Control by Majority.
Holders of Notes may not enforce this Indenture or the Notes except
as provided herein. Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.
Section 7.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 7.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal and interest on the Note,
on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
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Section 7.08 Collection Suit by Trustee.
If an Event of Default specified in Section 7.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, and interest remaining unpaid on the Notes and interest
on overdue principal and, to the extent lawful, interest and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 7.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disburse ments and advances of the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 7.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disburse ments and advances of 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 agents and counsel, and any other amounts due the Trustee under
Section 8.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 8.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 7.10 Priorities.
If the Trustee collects any money pursuant to this Article 7, it
shall pay out the money in the following order:
First: to the Trustee, its agents and counsel for amounts due under
Section 8.07 hereof, including payment of all compensation, expense and
liabilities
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incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively, and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 7.10.
Section 7.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the cost of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 7.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 7.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 8.
TRUSTEE
Section 8.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the occurrence and continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
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(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 similar
documents) or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates (or similar documents) and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein or otherwise verify the contents thereto).
(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly 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 8.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was grossly 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 7.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section 8.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or expense
including reasonable attorneys' fees that might be incurred by it in compliance
with such request or direction.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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Section 8.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any such document. The
Trustee shall receive and retain financial reports and statements of the Company
as provided herein, but it shall have no duty to review or analyze such reports
or statements to determine compliance with covenants or other obligations of the
Company.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any such attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, order, approval, bond or other paper or document unless requested in
writing to do so by the Holders representing more than 25% in aggregate
principal amount of Notes then outstanding; provided, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the Note afforded to it by the
terms of this Indenture, the Trustee may require
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indemnity reasonably satisfactory to it against such cost, expense or liability
as a condition to so proceeding.
Section 8.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 8.10 and 8.11 hereof.
Section 8.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 8.05 Notice of Defaults.
(a) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee in accordance with the provisions of paragraph (a) of
this Section 8.05, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
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Section 8.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15th following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 8.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree from time to time. 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 promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and hold it harmless against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 8.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld or delayed.
The obligations of the Company under this Section 8.07 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
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To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.01(f) or (g) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 8.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 8.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10 hereof;
(b) 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;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) 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 Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in princi pal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the
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Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 8.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 8.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 8.08, the Company's obligations under Section 8.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 8.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 8.10 Eligibility; Disqualification.
There shall at all times be a Trustee (or in the case of a banking
corporation included in a bank holding company system, the related bank holding
company) hereunder that is a corporation organized and doing business under the
laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 8.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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Section 8.12 Co-Trustee.
It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction denying or restricting the right of certain
banking corporations or associations to transact business as trustee as
contemplated herein in such jurisdiction. The following provisions of this
Section 8.12 are included in the event that it is necessary that the Trustee
appoint an additional institution as a separate Trustee or Co-Trustee.
In the event of the incapacity or lack of authority of the Trustee,
by reason of any present or future law of any jurisdiction, to exercise any of
the rights, powers and trusts herein granted to the Trustee or to take any other
action which may be necessary or desirable in connection therewith, each and
every remedy, power, right, claim, demand, cause of action, immunity, estate,
title, interest and lien expressed or intended by this Indenture to be exercised
by or vested in or conveyed to the Trustee with respect thereto shall be
exercisable by and vest in such separate Trustee or Co-Trustee but only to the
extent necessary to enable the separate Trustee or Co-Trustee to exercise such
rights, powers and trusts, and every covenant and obligation necessary to the
exercise thereof shall run to and be enforceable by such separate Trustee or
Co-Trustee.
Should any deed, conveyance or instrument in writing from the
Company be required by the separate Trustee or Co-Trustee so appointed by the
Trustee in order to more fully and certainly vest in and confirm to him or it
such properties, rights, powers, trusts, duties and obligations, any and all
such deeds, conveyances and instruments shall, on request, be executed,
acknowledged and delivered by the Company. In case any separate Trustee or
Co-Trustee or a successor to either, shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of such separate Trustee or Co-Trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new Trustee or successor to such separate Trustee or
Co-Trustee.
ARTICLE 9.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.01 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 9.02 or 9.03 hereof applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 9.
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Section 9.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 9.01 hereof of the option
applicable to this Section 9.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 9.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 9.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its obligations
under such Notes and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments delivered to it by the
Company acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due from the
trust referred to below; (b) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payment and
money for Note payments held in trust; (c) the rights, powers, trusts, duties
and immunities of the Trustee, and the Company's obligations in connection
therewith; (d) the Legal Defeasance provisions of this Indenture; and (e) the
obligations of the Company under Article 4 which shall not terminate until the
payment at the redemption date specified in Article 3 or the Stated Maturity of
the Notes. Subject to compliance with this Article 9, the Company may exercise
its option under this Section 9.02 notwithstanding the prior exercise of its
option under Section 9.03 hereof.
Section 9.03 Covenant Defeasance.
Upon the Company's exercise under Section 9.01 hereof of the option
applicable to this Section 9.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 9.04 hereof, be released from its
obligations under the covenants contained in Sections 5.02, 5.07 and Article 6
herein with respect to the outstanding Notes on and after the date the
conditions set forth in Section 9.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes); provided, that the foregoing shall not relieve the Company of its
obligations under Article 4 which shall not terminate until the payment at the
redemption date specified in Article 3 or the Stated Maturity of the Notes. For
this purpose, Covenant Defeasance means that, with respect to the outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether
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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 7.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
9.01 hereof of the option applicable to this Section 9.03, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, Sections
7.01(c) through 7.01(f) hereof shall not constitute Events of Default.
Section 9.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 9.02 or 9.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit, or cause to be deposited,
with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if
any, and interest on the outstanding Notes on the stated maturity thereof or on
the applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of Legal Defeasance, the Company must deliver to the
Trustee and the Holders an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that, since the Issue Date, the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for United States federal income tax purposes
as a result of such Legal Defeasance, and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company must deliver to
the Trustee and the Initial Purchaser an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for United States
federal income tax purposes as a result of such Covenant Defeasance, and such
Holders will be subject to United States 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;
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(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Events of Default from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of the Notes over other creditors of the Company, or with
the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others;
(g) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel in the United States reasonably acceptable to the
Trustee, each stating that the conditions precedent provided for or relating to
Legal Defeasance or Covenant Defeasance, as applicable, in the case of the
Officers' Certificate, in clauses (a) through (f) and, in the case of the
Opinion of Counsel, in clauses (b) and (c) of this paragraph, have been complied
with.
Section 9.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 9.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively, and solely for purposes of
this Section 9.05, the "Trustee") pursuant to Section 9.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, 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 cash or non-callable
Government Securities deposited pursuant to Section 9.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the
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Company any money or non-callable Government Securities held by it as provided
in Section 9.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
9.04(a) hereto, are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, and interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, and interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or noncallable Government Securities in accordance with Section 9.02 or
9.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 9.02 or 9.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 9.02 or 9.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of or interest on any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
Section 9.08 Survival.
The Trustee's rights under this Article 9 shall survive termination
of this Indenture.
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ARTICLE 10.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 10.01 Without Consent of Holders of Notes.
Notwithstanding Section 10.02 hereof, the Company and the Trustee
may amend or supplement this Indenture or the Notes without the consent of any
Holder of a Note:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not adversely affect any Holder;
(c) to provide for the assumption of the Company obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 6 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company; or
(g) to effect any change to the transfer and exchange restrictions
and Note delivery procedures contained in Article 2 in order to conform with
changes in any applicable law or Applicable Procedures.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
8.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
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Section 10.02 With Consent of Holders of Notes.
Except as provided below in this Section 10.02, the Company and the
Trustee, may amend or supplement this Indenture and the Notes with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 7.04 and 7.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Notwithstanding the foregoing, without the consent of Holders of a
majority in aggregate principal amount of the then outstanding Notes voting as a
single class, the Company and the Trustee may not: (i) modify the provisions
(including the defined terms used therein) of Section 5.07 hereof in a manner
adverse to the Holders or (ii) release or modify any Lien granted to the Holders
of the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 8.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 10.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall mail to the Holders of Notes affected
thereby 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 such amended or
supplemental indenture or waiver. Subject to the provisions of this Section
10.02 and Sections 7.04 and 7.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without
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the consent of each Holder affected, an amendment or waiver under this Section
10.02 may not (with respect to any Notes held by a non-consenting Holder):
(a) change the Stated Maturity on any Note, or reduce the principal
thereof or the rate (or extend the time for payment) of interest thereon or any
premium payable upon the redemption at the option of the Company thereof, or
change the place of payment where, or the coin or currency in which, any Note or
any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption at the option of the Company, on or after
the redemption date), or reduce the Change of Control Payment after the Change
of Control has occurred;
(b) alter the provisions (including the defined terms used herein)
regarding the right of the Company to redeem the Notes as a right, or at the
option, of the Company in a manner adverse to the Holders;
(c) reduce the percentage in principal amount of Notes outstanding
whose Holders must consent to an amendment, supplement or waiver provided for in
this Indenture; or
(d) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby.
Section 10.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in an amended or supplemental indenture that complies with the TIA
as then in effect.
Section 10.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder. An amendment or waiver shall
become effective upon receipt by the Trustee of the requisite number of written
consents under Section 10.01 or 10.02 as applicable.
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Notes entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who held
Notes at such record date (or their duly desig nated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date.
Section 10.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 10.06 Trustee to Sign Amendments, Etc.
Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 10 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee and all
other conditions to the execution and delivery of such amendment or supplement
set forth in this Article 10 are fulfilled. The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 8.01 hereof) shall be fully protected in
relying upon an Officer's Certificate and an Opinion of Counsel stating that the
execution of such amended or supplement al indenture is authorized or permitted
by this Indenture and that such amendment is the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 10.03).
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and will cease to be of further
effect as to all Notes issued hereunder, when either:
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(a) all such Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company) have been delivered to the Trustee for cancellation; or
(b)(i) all such Notes not theretofore delivered to such Trustee
for cancellation have become due and payable by reason of
the making of a notice of redemption, repurchase or
otherwise or will become due and payable within one year
and the Company has irrevocably deposited or caused to be
deposited with such Trustee as trust funds in trust an
amount of money sufficient to pay and discharge the entire
Indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation for principal and accrued interest
to the date of maturity, redemption or repurchase;
(ii) no Default or Event of Default with respect to this
Indenture or the Notes 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 or constitute a default under, any
other instrument to which the Company is a party or by
which the Company is bound;
(iii) the Company has paid or caused to be paid all sums payable
by it under this Indenture; and
(iv) the Company has delivered irrevocable written instructions
to the Trustee under this Indenture to apply the deposited
money toward the payment of such Notes at maturity or the
redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and
an Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 11.02 Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to Persons entitled thereto, of the principal, premium,
if any, and interest for whose payment such money has been deposited with the
Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
78
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though such deposit had occurred pursuant to
Section 11.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 12.
SUBORDINATION
Section 12.01 Notes Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Notes issued
hereunder by its acceptance thereof likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of this Article 12, and each
person holding any Note, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment of all amounts on account of all Notes issued hereunder
shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
created, assumed or guaranteed.
Section 12.02 Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation, Reorganization, Etc., of the Company.
Upon the payment or distribution of the assets of the Company of any
kind or character, whether in cash, property or securities (including any
collateral at any time securing the Notes), to creditors upon any dissolution,
winding-up, liquidation or reorganization of the Company (whether voluntary or
involuntary, or in bankruptcy, insolvency, reorganization, liquidation,
receivership proceedings, or upon an assignment for the benefit of creditors, or
any other marshaling of the assets and liabilities of the Company, or
otherwise), then in such event:
(a) all Senior Indebtedness and the reasonable fees and expenses of
the Trustee shall first be paid in full, in cash, before any payment is
made on account of the Notes, whether by way of the payment of principal
of or interest on the indebtedness evidenced by the Notes, a repurchase,
redemption or other acquisition of the Notes or otherwise (collectively,
"pay the Notes");
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(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted, or securities of
the Company or any other Person provided for by a plan of reorganization
or readjustment, junior, or the payment of which is otherwise subordinate,
at least to the extent provided in this Article 12, with respect to the
Notes, to the payment of all Senior Indebtedness), to which the Holders or
the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article 12, including any such payment or distribution
which may be payable or deliverable by reason of the payment of another
debt of the Company being subordinated to the payment of the Notes, shall
be paid or delivered by any debtor, custodian or other person making such
payment or distribution, directly to the holders of the Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, for application to
payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full after giving effect to
any concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section 12.02, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities (other
than securities of the Company as reorganized or readjusted, or securities
of the Company or any other Person provided for by a plan of
reorganization or readjustment, junior, or the payment of which is
otherwise subordinate, at least to the extent provided for in this Article
12, with respect to the Notes, to the payment of all Senior Indebtedness),
shall be received by the Trustee or the Holders before all Senior
Indebtedness is paid in full, such payment or distribution (subject to the
provisions of Sections 12.06 and 12.07) shall be held in trust for the
benefit of, and shall be immediately paid or delivered by the Trustee or
such Holders, as the case may be, to, the Holders of Senior Indebtedness
remaining unpaid or unprovided for, or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any of such Senior
Indebtedness have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented
by each, for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness
in full after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company.
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Upon any distribution of assets of the Company referred to in this
Article 12, the Trustee, subject to the provisions of Sections 8.01 and 8.02,
and the Holders shall be entitled to rely conclusively upon any order or decree
by any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceeding is pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.
Section 12.03 Holders to Be Subrogated to Right of Holders of Senior
Indebtedness.
Subject to the prior payment in full of all Senior Indebtedness then
due, the Holders shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until the principal of and interest on the
Notes shall be paid in full, and, for purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of assets, whether in
cash, property or securities, distributable to the holders of Senior
Indebtedness under the provisions hereof to which the Holders would be entitled
except for the provisions of this Article 12, and no payment pursuant to the
provisions of this Article 12 to the holders of Senior Indebtedness by the
Holders shall, as among the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders, be deemed to be a payment by the Company
to or on account of Senior Indebtedness, it being understood that the provisions
of this Article 12 are, and are intended, solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Section 12.04 Obligations of the Company Unconditional.
Nothing contained in this Article 12 or elsewhere in this Indenture
or in any Note is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Notes, as and when the same shall
become due and payable in accordance with the terms of the Notes, or to affect
the relative rights of the Holders and other creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon the happening of an Event of Default under this Indenture,
subject to the provisions of Article 7, and the rights, if any, under this
Article 12 of the holders of Senior Indebtedness to receive assets, whether in
cash, property or securities, of the Company otherwise payable or deliverable to
the Trustee or such Holder upon the exercise of any such remedy.
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Section 12.05 Company Not to Make Payment With Respect to Notes in
Certain Circumstances.
(a) Upon the happening of a default in payment (whether at maturity
or at a date fixed for prepayment or by acceleration or otherwise) of the
principal of, interest on or other amount due in respect of any Senior
Indebtedness, as such default is defined under or in respect of such Senior
Indebtedness or in any agreement pursuant to which such Senior Indebtedness has
been incurred, then, unless and until the amount of such Senior Indebtedness
then due shall have been paid in full or provision made therefor in a manner
satisfactory to the holders of such Senior Indebtedness, or such default shall
have been cured or waived or shall have ceased to exist, the Company shall not
pay the Notes.
(b) Upon the happening of an event of default with respect to any
Senior Indebtedness (other than under circumstances when the terms of subsection
(a) of this Section 12.05 are applicable), as such event of default is defined
under or in respect of such Senior Indebtedness or in any agreement pursuant to
which such Senior Indebtedness has been incurred, permitting the holders thereof
to immediately accelerate the maturity thereof, and upon written notice thereof
given to the Company and the Trustee by any one or more holders of such Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness have been issued (a "Default Notice"), then, unless and
until such event of default shall have been cured or waived in writing by the
holders of such Senior Indebtedness or shall have ceased to exist, the Company
shall not pay the Notes; provided, however, that this subsection (b) shall not
prevent the making of any such payment (which is not otherwise prohibited by
subsection (a) of this Section 12.05) for more than 180 days after the Default
Notice shall have been given unless the Senior Indebtedness in respect of which
such event of default exists has been declared due and payable in its entirety,
in which case no such payment may be made until such acceleration has been
waived, rescinded or annulled, or such Senior Indebtedness shall have been paid
in full, or payment thereof shall be duly provided for in cash or in any other
manner satisfactory to the holders of such Senior Indebtedness. Notwithstanding
the foregoing, not more than one Default Notice shall be given with respect to
the same issue of Senior Indebtedness within a period of 360 consecutive days,
and no event of default which existed or was continuing on the date of any
Default Notice and was known to the holders of such issue of Senior Indebtedness
shall be made the basis for the giving of a subsequent Default Notice by the
holders of such issue of Senior Indebtedness.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 12.05, the Company shall pay the Notes and such payment shall be
received by the Trustee, any Holder or any Paying Agent (or, if the Company is
acting as its own Paying Agent, money for any such payment shall be segregated
and held in trust), after the happening of a default under any Senior
Indebtedness of the type specified in subsections (a) and (b) of this Section
12.05, then, unless and until
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the amount of such Senior Indebtedness then due shall have been paid in full, or
provision made therefor or such default shall have been cured or waived or shall
have ceased to exist, such payment (subject, in each case, to the provisions of
Sections 12.06 and 12.07 and the proviso contained in subsection (b) of this
Section 12.05) shall be held in trust for the benefit of, and shall be
immediately paid over to, the holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
under which any instruments evidencing any of the 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, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of Senior Indebtedness.
Section 12.06 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes. Notwithstanding the provisions of this
Article 12 or any other provision of this Indenture, the Trustee shall not at
any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee, unless and until the
Trustee shall have received written notice thereof from the Company or from the
holder or holders of Senior Indebtedness or from their representative or
representatives or from the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness have been
issued; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Sections 8.01 and 8.02, shall be entitled to assume
conclusively that such facts do not exist.
The Trustee shall be entitled to rely conclusively on the delivery
to it of a written notice by a person representing himself or herself to be a
holder of Senior Indebtedness (or a representative of such holder or the trustee
under any indenture pursuant to which any instruments evidencing any of such
Senior Indebtedness have been issued) to establish that such notice has been
given by a holder of Senior Indebtedness or a representative of any such holder.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 12, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
each person under this Article 12, and, if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
Section 12.07 Application by Trustee of Money Deposited With It.
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Money deposited in trust with the Trustee pursuant to Section 10.01
and not in violation of this Article 12 shall be for the sole benefit of Holders
and shall thereafter not be subject to the subordination provisions of this
Article 12, otherwise, any deposit of money by the Company with the Trustee or
any Paying Agent (whether or not in trust) for the payment of the principal of
or interest on any Notes shall be subject to the provisions of Sections 12.01,
12.02, 12.03 and 12.05; except that, if two Business Days prior to the date on
which by the terms of this Indenture any such money may become payable for any
purpose (including, without limitation, the payment of either the principal of
or interest on any Note) the Trustee shall not have received with respect to
such money the notice provided for in Section 12.06, then the Trustee or any
Paying Agent shall have full power and authority to receive such money and to
apply such money to the purpose for which it was received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date. This Section 12.07 shall be construed solely for the benefit of the
Trustee and the Paying Agent and shall not otherwise affect the rights that
holders of Senior Indebtedness may have to recover any such payments from the
Holders in accordance with the provisions of this Article 12.
Section 12.08 Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness.
No right of any present or future holders 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
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of any Senior Indebtedness may extend,
renew, modify or amend the terms of such Senior Indebtedness or any Note
therefor and release, sell or exchange such Note and otherwise deal freely with
the Company, all without affecting the liabilities and obligations of the
parties to this Indenture or the Holders. No provision in any supplemental
indenture which affects the superior position of the holders of the Senior
Indebtedness shall be effective against the holders of the Senior Indebtedness
unless the holders of such Senior Indebtedness (required pursuant to the terms
of such Senior Indebtedness to give such consent) have consented thereto.
Section 12.09 Trustee to Effectuate Subordination.
Each Holder of a Note by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 12 and
appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 12.10 Right of Trustee to Hold Senior Indebtedness.
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The Trustee, in its individual capacity, shall be entitled to all of
the rights set forth in this Article 12 in respect of any Senior Indebtedness at
any time held by it to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 8.07.
Section 12.11 Article Not to Prevent Events of Default.
The failure to make a payment on account of the principal of or
interest on the Notes by reason of any provision in this Article 12 shall not be
construed as preventing the occurrence of an Event of Default under Section
7.01.
Section 12.12 No Fiduciary Duty Created to Holders of Senior
Indebtedness.
Notwithstanding any other provision in this Article 12, the Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness by virtue of the provisions of this Article 12.
Section 12.13 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 12 shall in such case (unless the context
shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article 12 in addition to or in place of the Trustee;
provided, however, that Sections 12.06, 12.10 and 12.12 shall not apply to the
Company if it acts as Paying Agent.
ARTICLE 13.
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall control.
Section 13.02 Notices.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail
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(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company:
Metromedia Fiber Network, Inc.
One North Lexington Avenue
White Plains, NY 10601
Attention: Chief Financial Officer
With a copy to:
Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073-2137
Attention: General Counsel
and a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Douglas A. Cifu, Esq.
If to the Trustee:
U.S. Bank Trust National Association
180 East Fifth Street
Suite 200
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration
and a copy to:
U.S. Bank Trust National Association
100 Wall Street, 20th Floor
New York, New York 10005
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered, five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged by the sender's
telecopier, if telecopied; and the
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next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313 (c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it, except that any notice or communication to the Trustee shall be
deemed to have been duly given to the Trustee when received at the Corporate
Trust Office of the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders of Notes with Other Holders
of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 13.04 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, except with respect to the initial
authentication of Notes on the date of this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied, and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
or they have made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers,
Employees and Shareholders.
No past, present or future director, officer, employee,
incorporator, agent or shareholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, 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 Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
Section 13.08 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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Section 13.09 Consent to Jurisdiction and Service.
To the fullest extent permitted by applicable law, the Company
hereby irrevocably submits to the jurisdiction of any Federal or State court
located in the Borough of Manhattan in The City of New York, New York in any
suit, action or proceeding based on or arising out of or relating to this
Agreement or any Notes or Exchange Notes, and irrevocably agree that all claims
in respect of such suit or proceeding may be determined in any such court. The
Company irrevocably waives, to the fullest extent permitted by law, any
objection which they may have to the laying of the venue of any such suit,
action or proceeding brought in such a court and any claim that any suit, action
or proceeding brought in such a court has been brought in an inconvenient forum.
The Company agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Company and may
be enforced in the courts of any jurisdiction to which the Company is subject by
a suit upon such judgment, provided that service of process is effected upon the
Company in the manner specified herein or as otherwise permitted by law. To the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
now, attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of their respective obligations
under this Agreement, to the extent permitted by law.
Section 13.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 13.11 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 13.12 Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
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Section 13.14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Indenture signature page(s) follow]
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[Indenture signature page]
Dated as of [ ] [ ], [[1999]]
METROMEDIA FIBER NETWORK, INC.
By:_____________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By:_____________________________________
Name:
Title: