EXHIBIT 3.1
EXHIBIT A
FORM OF GLOBAL NOTE
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE MAY NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND
NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
11 3/8% SENIOR NOTES DUE JANUARY 1, 2009
CUSIP NO. 582268 AA6
No. R-__ $____,000,000
McLeodUSA Incorporated, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
_______ HUNDRED MILLION DOLLARS ($____,000,000) (which principal amount may from
time to time be increased or decreased to such other principal amounts (which,
taken together with the principal amounts of all other outstanding Notes, shall
not exceed SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) in the aggregate
at any time) by adjustments made on the records of the Trustee hereinafter
referred to in accordance with the Indenture) on January 1, 2009, and to pay
interest thereon from the Issue Date, semi-annually in arrears on January 1 and
July 1 of each year, commencing July 1, 2001, at the rate of 11.375% per annum,
until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which shall
be December 15 or June 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not more than 15 calendar days and not less than 10 calendar days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
The principal of this Note shall accrue interest at the rate of 11.375% per
annum, and in the case of a default in payment of principal and premium, if any,
upon acceleration or redemption, in which case interest shall be payable
pursuant to the preceding paragraph on such overdue principal
(and premium, if any), such interest shall be payable on demand and, if not so
paid on demand, such interest shall itself bear interest at the rate of 12.375%
per annum (to the extent that the payment of such interest shall be legally
enforceable), and shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest on unpaid interest shall also be payable on demand.
Payment of the principal of (and premium, if any) and interest on this Note
will be made at the corporate trust office of the Trustee and at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, New York, and at any other office or agency maintained by
the Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
MCLEODUSA INCORPORATED
By____________________________
Attest:
______________________________
This Note is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By___________________________
Authorized Signatory
This Note is one of a duly authorized issue of debentures, notes, bonds, or
other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an Indenture dated as of January 15, 2001, between the
Company and United States Trust Company of New York, as trustee (the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Securities of which this Note is a part) (such Indenture, the
"Shelf Indenture") as supplemented by the First Supplemental Indenture dated as
of January 15, 2001, between the Company and the Trustee (the "First
Supplemental Indenture"), duly executed and delivered by the Company to the
Trustee. The Shelf Indenture, as supplemented by the First Supplemental
Indenture and by any other indentures supplemental thereto that are applicable
to the Notes, is referred to herein as the "Indenture." Under the Shelf
Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), and may otherwise vary as provided
in the Shelf Indenture. This Note is one of a duly authorized issue of Notes of
the Company designated as its 11 3/8% Senior Notes due January 1, 2009 (the
"Notes") issued under the Indenture. The Notes are limited in aggregate
principal amount to $750,000,000. Reference is hereby made to the Indenture
for a description of the rights, limitations of rights, obligations, duties, and
immunities thereunder of the Company, the Trustee and the Holders of the Notes,
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Notes do not have the benefit of any sinking fund obligations.
The Indenture provides that, subject to certain conditions, if (i) a Change
of Control (as defined in the Indenture) occurs or (ii) certain Excess Proceeds
are available to the Company as a result of any Asset Sale, the Company shall be
required to make a Change of Control Offer or an Asset Sale Offer, as the case
may be, for all or a specified portion of the Notes.
In the event of a deposit or withdrawal of an interest in this Note
(including upon an exchange, transfer, redemption or repurchase of this Note in
part only) effected in accordance with the Indenture, the Security Registrar,
upon receipt of notice of such event from the Depositary's custodian for this
Note, shall make an adjustment on its records to reflect an increase or decrease
of the outstanding principal amount of this Note resulting from such deposit or
withdrawal, as the case may be.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
Article Fourteen of the Shelf Indenture contains provisions for defeasance
at any time of (i) the entire indebtedness of this Note, or (ii) certain
restrictive covenants and Events of Default with respect to this Note, in each
case upon compliance with certain conditions set forth therein. Such Article
Fourteen, as modified by Section 1.18 of the First Supplemental Indenture, shall
apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate
principal amount of the Notes at the time outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and like tenor and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like tenor and aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day year of
twelve 30-day months.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Notes of this series as a convenience to the Holders of such
Notes. No representation is made as to the correctness or accuracy of such CUSIP
numbers as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Note fill in the form below:
(I) or (we) assign and transfer this Note to
______________________________________________________________________________
(Insert assignee's social security or tax identification number, if any)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature:_______________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date:_________________________
Signature Guarantee:__________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Trustee in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.07 or 4.08 of the First Supplemental Indenture, check here____.
If you want to elect to have only a part of this Note purchased by the
Company pursuant to Section 4.07 or 4.08 of the First Supplemental Indenture,
state the amount (amount must be an integral multiple of $1,000):
$________________
Dated:_________________ Your Signature:_________________________
(sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:__________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Trustee in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.