EXHIBIT 4.1
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NEXTLINK COMMUNICATIONS, L.L.C.
AND
NEXTLINK CAPITAL, INC.
Issuers
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TO
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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Indenture
Dated as of April 25, 1996
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$350,000,000
12 1/2% SENIOR NOTES
DUE April 15, 2006
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NEXTLINK COMMUNICATIONS, L.L.C.
NEXTLINK CAPITAL, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
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(S) 310(a)(1) ....................... 609
(a)(2) ....................... 609
(a)(3) ....................... Not
Applicable
(a)(4) ....................... Not
Applicable
(b) ....................... 608
....................... 610
(S) 311(a) ....................... 613
(b) ....................... 613
(S) 312(a) ....................... 701
702(a)
(b) ....................... 702(b)
(c) ....................... 702(c)
(S) 313(a) ....................... 703(a)
(a)(4) ....................... 703(a)
(b) ....................... 703(a)
(c) ....................... 703(a)
(d) ....................... 703(b)
(S) 314(a) ....................... 704
1018
(b) ....................... Not
Applicable
(c)(1) ....................... 102
(c)(2) ....................... 102
(c)(3) ....................... Not
Applicable
(d) ....................... Not
Applicable
(e) ....................... 102
(S) 315(a) ....................... 601
(b) ....................... 602
(c) ....................... 601
(d) ....................... 601
(e) ....................... 514
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Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
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Trust Indenture Indenture
Act Section Section
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(S) 316(a)(1)(A) 502
512
(a)(1)(B) ....................... 513
(a)(2) ....................... Not
Applicable
(b) ....................... 508
(c) ....................... 104
(S) 317(a)(1) ....................... 503
(a)(2) ....................... 504
(b) ....................... 1003
(S) 318(a) ....................... 107
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Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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Parties ............................................................. 1
Recitals of the Issuers.............................................. 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
Act.................................................... 2
Acquired Debt.......................................... 2
Additional Step-Up..................................... 3
Affiliate.............................................. 3
Agent Member........................................... 3
Applicable Procedures.................................. 3
Asset Disposition...................................... 3
Attributable Value..................................... 3
Bank Credit Agreement.................................. 4
Board of Directors..................................... 4
Board Resolution....................................... 4
Business Day........................................... 4
Capital Lease Obligation............................... 4
Capital Stock.......................................... 5
CEDEL.................................................. 5
Change of Control...................................... 5
Commission............................................. 5
Common Equity.......................................... 5
Company................................................ 5
Consolidated Capital Ratio............................. 5
Consolidated Cash Flow Available for
Fixed Charges.......................................... 6
Consolidated Income Tax Expense........................ 6
Consolidated Interest Expense.......................... 6
Consolidated Net Income................................ 7
Consolidated Net Worth................................. 7
Consolidated Tangible Assets........................... 7
Corporate Trust Office................................. 8
corporation............................................ 8
Debt................................................... 8
Default................................................ 9
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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Defaulted Interest.................................... 9
Depository............................................ 9
Depository Securities Certification................... 9
Disqualified Stock.................................... 9
DTC................................................... 10
Eagle River........................................... 10
Eligible Institution.................................. 10
Euroclear............................................. 10
Event of Default...................................... 10
Exchange Act.......................................... 10
Exchange Offer........................................ 10
Exchange Offer Registration Statement................. 10
Exchange Security..................................... 10
Expiration Date....................................... 11
Global Security....................................... 11
Government Securities................................. 11
Guarantee............................................. 11
Holder................................................ 11
Incur................................................. 11
Indenture............................................. 12
Initial Purchasers.................................... 12
Interest Payment Date................................. 12
Interest Rate or Currency Protection
Agreement........................................... 12
Investment............................................ 12
Issue Date............................................ 13
Issuers Request; Issuers Order........................ 13
Joint Venture......................................... 13
Lien.................................................. 13
Managing Member....................................... 13
Managing Member's Certificate......................... 13
Marketable Securities................................. 14
Maturity.............................................. 14
Net Available Proceeds................................ 14
Offer to Purchase..................................... 15
Officers' Certificate................................. 18
Opinion of Counsel.................................... 18
Original Securities................................... 18
Other Securities...................................... 18
Outstanding........................................... 18
Owner Securities Certification........................ 19
Paying Agent.......................................... 19
Permanent Regulation S Global Security................ 19
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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Permitted Interest Rate or Currency
Protection Agreement.................................. 20
Permitted Investment.................................. 20
Permitted Liens....................................... 20
Person................................................ 21
Pledge Account........................................ 21
Pledge Agreement...................................... 21
Pledged Securities.................................... 21
Predecessor Security.................................. 21
Preferred Dividends................................... 22
Preferred Stock....................................... 22
Purchase Agreement.................................... 22
Purchase Date......................................... 22
Purchase Money Debt................................... 22
readily marketable cash equivalents................... 22
Receivables........................................... 23
Receivables Sale...................................... 23
Redemption Date....................................... 23
Redemption Price...................................... 23
Regular Record Date................................... 23
Regulation S.......................................... 23
Related Person........................................ 23
Resale Registration Statement......................... 24
Responsible Officer................................... 24
Restricted Global Security............................ 24
Restricted Period..................................... 24
Restricted Securities................................. 24
Restricted Subsidiary................................. 24
Rule 144.............................................. 24
Rule 144A............................................. 25
Sale and Leaseback Transaction........................ 25
Securities............................................ 25
Securities Act........................................ 25
Security Register; Security Registrar................. 25
Significant Subsidiary................................ 25
Special Interest...................................... 25
Special Record Date................................... 25
Stated Maturity....................................... 25
Step-Down Date........................................ 26
Step-Up............................................... 26
Subordinated Debt..................................... 26
Subsidiary............................................ 27
Successor Security.................................... 27
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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Tax Amount............................................ 27
Telecommunications Assets............................. 27
Telecommunications Business........................... 27
Temporary Regulation S Global
Security.............................................. 28
Transferee Securities Certification................... 28
Trustee............................................... 28
Trust Indenture Act................................... 28
Unrestricted Subsidiary............................... 28
Vendor Financing Facility............................. 29
Vice President........................................ 29
Voting Stock.......................................... 29
Wholly-Owned Restricted Subsidiary.................... 29
SECTION 102. Compliance Certificates and
Opinions............................................ 30
SECTION 103. Form of Documents Delivered to
Trustee............................................. 30
SECTION 104. Acts of Holders; Record Dates......................... 31
SECTION 105. Notices, Etc., to Trustee and
Issuers............................................. 34
SECTION 106. Notice to Holders; Waiver............................. 34
SECTION 107. The Application of Trust Indenture
Act................................................. 35
SECTION 108. Effect of Headings and
Table of Contents.................................. 35
SECTION 109. Successors and Assigns................................ 35
SECTION 110. Separability Clause................................... 36
SECTION 111. Benefits of Indenture................................. 36
SECTION 112. Governing Law......................................... 36
SECTION 113. Legal Holidays........................................ 36
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally...................................... 36
SECTION 202. Form of Face of Security............................. 40
SECTION 203. Form of Reverse of Security.......................... 45
SECTION 204. Form of Trustee's Certificate of
Authentication.................................... 51
ARTICLE THREE
The Securities
SECTION 301. Title and Terms....................................... 52
SECTION 302. Denominations......................................... 53
SECTION 303. Execution, Authentication,
Delivery and Dating................................... 54
SECTION 304. Temporary Securities.................................. 55
SECTION 305. Global Securities; Registration,
Registration of Transfer and
Exchange.............................................. 56
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities..................................... 66
SECTION 307. Payment of Interest; Interest Rights
Preserved............................................. 67
SECTION 308. Persons Deemed Owners................................. 68
SECTION 309. Cancellation.......................................... 69
SECTION 310. Computation of Interest............................... 69
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 311. CUSIP Numbers......................................... 69
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture........................................... 70
SECTION 402. Application of Trust Money............................ 71
ARTICLE FIVE
Remedies
SECTION 501. Events of Default..................................... 71
SECTION 502. Acceleration of Maturity; Rescission
and Annulment........................................ 74
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee........................... 75
SECTION 504. Trustee May File Proofs of Claim...................... 76
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities............................. 77
SECTION 506. Application of Money Collected........................ 77
SECTION 507. Limitation on Suits................................... 78
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest............................................. 78
SECTION 509. Restoration of Rights and Remedies.................... 79
SECTION 510. Rights and Remedies Cumulative........................ 79
SECTION 511. Delay or Omission Not Waiver.......................... 79
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 512. Control by Holders.................................... 80
SECTION 513. Waiver of Past Defaults............................... 80
SECTION 514. Undertaking for Costs................................. 81
SECTION 515. Waiver of Stay or Extension Laws...................... 81
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities................... 81
SECTION 602. Notice of Defaults.................................... 82
SECTION 603. Certain Rights of Trustee............................. 82
SECTION 604. Not Responsible for Recitals or
Issuance of Securities............................... 83
SECTION 605. May Hold Securities................................... 84
SECTION 606. Money Held in Trust................................... 84
SECTION 607. Compensation and Reimbursement........................ 84
SECTION 608. Disqualification; Conflicting
Interests............................................ 85
SECTION 609. Corporate Trustee Required;
Eligibility.......................................... 85
SECTION 610. Resignation and Removal; Appointment
of Successor......................................... 86
SECTION 611. Acceptance of Appointment by
Successor............................................ 87
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business............................ 88
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 613. Preferential Collection of Claims
Against Issuers...................................... 88
SECTION 614. Appointment of Authenticating Agent................... 89
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and The Issuers
SECTION 701. Issuers to Furnish Trustee Names
and Addresses of Holders............................. 91
SECTION 702. Preservation of Information;
Communications to Holders............................ 91
SECTION 703. Reports by Trustee.................................... 92
SECTION 704. Reports by Issuers.................................... 92
SECTION 705. Officers' Certificate with Respect to
Change in Interest Rates............................. 92
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets...................................... 93
SECTION 802. Successor Substituted................................. 94
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders................................... 95
SECTION 902. Supplemental Indentures with
Consent of Holders................................... 96
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 903. Execution of Supplemental Indentures.................. 97
SECTION 904. Effect of Supplemental Indentures..................... 97
SECTION 905. Conformity with Trust Indenture Act................... 97
SECTION 906. Reference in Securities to
Supplemental Indentures.............................. 97
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest............................................. 98
SECTION 1002. Maintenance of Office or Agency....................... 98
SECTION 1003. Money for Security Payments to be
Held in Trust........................................ 99
SECTION 1004. Existence............................................. 100
SECTION 1005. Maintenance of Properties and
Insurance............................................ 101
SECTION 1006. Payment of Taxes and Other Claims..................... 101
SECTION 1007. Limitation on Consolidated Debt....................... 102
SECTION 1008. Limitation on Debt and Preferred
Stock of Restricted Subsidiaries..................... 105
SECTION 1009. Limitation on Restricted Payments..................... 107
SECTION 1010. Limitations on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries.............................. 109
SECTION 1011. Limitation on Liens................................... 111
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 1012. Limitation on Sale and Leaseback
Transactions......................................... 112
SECTION 1013. Limitation on Asset Dispositions...................... 113
SECTION 1014. Limitation on Issuances and Sales
of Capital Stock of Restricted
Subsidiaries......................................... 115
SECTION 1015. Transactions with Affiliates and
Related Persons...................................... 115
SECTION 1016. Change of Control..................................... 116
SECTION 1017. Provision of Financial Information.................... 117
SECTION 1018. Limitations on Conduct of Business
of Capital........................................... 118
SECTION 1019. Pledge Agreement; Security............................ 118
SECTION 1020. Statement by Officers as to Default................... 120
SECTION 1021. Waiver of Certain Covenants........................... 121
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption................................... 121
SECTION 1102. Applicability of Article.............................. 122
SECTION 1103. Election to Redeem; Notice to
Trustee.............................................. 122
SECTION 1104. Securities to Be Redeemed Pro Rata.................... 123
SECTION 1105. Notice of Redemption.................................. 123
SECTION 1106. Deposit of Redemption Price........................... 124
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 1107. Securities Payable on Redemption
Date................................................. 125
SECTION 1108. Securities Redeemed in Part........................... 125
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Issuers' Option to Effect Defeasance
or Covenant Defeasance............................... 126
SECTION 1202. Defeasance and Discharge.............................. 126
SECTION 1203. Covenant Defeasance................................... 127
SECTION 1204. Conditions to Defeasance
or Covenant Defeasance............................... 127
SECTION 1205. Deposited Money and U.S.Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions....................... 129
SECTION 1206. Reinstatement......................................... 130
SECTION 1207. Repayment to Company.................................. 130
TESTIMONIUM........................................................... 132
SIGNATURES............................................................ 132
ACKNOWLEDGMENTS....................................................... 133
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Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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INDENTURE, dated as of April 25, 1996 between NEXTLINK Communications,
L.L.C., a limited liability company formed under the laws of the State of
Washington (the "Company"), and NEXTLINK Capital, Inc., a Washington corporation
and a wholly-owned subsidiary of the Company ("Capital"), as joint and several
obligors (collectively, the "Issuers"), each having its principal office at 155
108th Avenue N.E., 8th Floor, Bellevue, Washington 98004, and United States
Trust Company of New York, duly organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUERS
The Issuers have duly authorized the creation of an issue of
$350,000,000 aggregate principal amount of their 12 1/2% Senior Notes due April
15, 2006 (the Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Issuers have duly authorized the execution
and delivery of this Indenture. The Securities may consist of either or both of
Original Securities or Exchange Securities, each as defined herein. The
Original Securities and the Exchange Securities shall rank pari passu.
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All things necessary to make the Securities, when executed by the
Issuers and authenticated and delivered hereunder and duly issued by the
Issuers, the valid obligations of the Issuers, and to make this Indenture a
valid agreement of the Issuers, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein) and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted as consistently applied by the Issuers at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Acquired Debt" means, with respect to any specified Person, (i) Debt
of any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Restricted Subsidiary of such specified Person
and (ii) Debt secured by a Lien encumbering any asset acquired by such specified
Person, which Debt was not Incurred in anticipation of, and was outstanding
prior to, such merger, consolidation or acquisition.
-2-
"Additional Step-Up" has the meaning set forth in the form of Security
contained in Section 202.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depository.
"Applicable Procedures" has the meaning set forth in Section
305(c)(2).
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including a consolidation or merger or other sale of any such
Restricted Subsidiary with, into or to another Person in a transaction in which
such Restricted Subsidiary ceases to be a Restricted Subsidiary of the specified
Person, but excluding a disposition by a Restricted Subsidiary of such Person to
such Person or a Wholly-Owned Restricted Subsidiary of such Person or by such
Person to a Wholly-Owned Restricted Subsidiary of such Person) of (i) shares of
Capital Stock or other ownership interests of a Restricted Subsidiary of such
Person (other than as permitted by the provisions of Section 1008 or pursuant to
a transaction in compliance with Section 801), (ii) substantially all of the
assets of such Person or any of its Restricted Subsidiaries representing a
division or line of business (other than as part of a Permitted Investment) or
(iii) other assets or rights of such Person or any of its Restricted
Subsidiaries other than (A) in the ordinary course of business or (B) that
constitutes a Restricted Payment which is permitted by the provisions of Section
1009; provided that a transaction described in clause (i), (ii) and (iii) shall
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constitute an Asset Disposition only if the aggregate consideration for such
transfer, conveyance, sale, lease or other disposition is equal to $5 million or
more in any 12-month period.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount
-3-
of rent required to be paid by such Person under such lease during the initial
term thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of penalty, such net amount shall also
include the lesser of the amount of such penalty (in which case no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated) or the rent which would otherwise be
required to be paid if such lease is not so terminated. "Attributable Value"
means, as to a Capital Lease Obligation, the principal amount thereof.
"Bank Credit Agreement" means any one or more credit agreements (which
may include or consist of revolving credits) between the Company or any
Restricted Subsidiary of the Company and one or more banks or other financial
institutions providing financing for the business of the Company and its
Restricted Subsidiaries.
"Board of Directors" means, in respect of Capital, the board of
directors of Capital, or any duly authorized committee of that board.
"Board Resolution" means, in respect of Capital, a copy of a
resolution certified by the Secretary or an Assistant Secretary of Capital to
have been duly adopted by the Board of Directors of Capital and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The Borough of
Manhattan, The City of New York, New York are authorized or obligated by law or
executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
-4-
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles (a "Capital Lease"). The stated maturity of such
obligation shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with generally accepted
accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"CEDEL" means Cedel Bank, Societe Anonyme (or any successor securities
clearing agency).
"Change of Control" has the meaning specified in Section 1016.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Equity" of any Person means Capital Stock of such Person that
is not Disqualified Stock, and a "sale of its Common Equity" includes any sale
effected by private sale or public offering.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Consolidated Capital Ratio" of any Person as of any date means the
ratio of (i) the aggregate consolidated principal amount of Debt of such Person
then outstanding to (ii) the aggregate consolidated Capital Stock (other than
Disqualified Stock) and paid-in capital (other than in respect of Disqualified
Stock) of such Person as of such date.
-5-
"Consolidated Cash Flow Available for Fixed Charges" for any period
means the Consolidated Net Income of the Company and its Restricted Subsidiaries
for such period increased by the sum of (i) Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for such period, plus (ii) Consolidated
Income Tax Expense of the Company and its Restricted Subsidiaries for such
period, plus (iii) the consolidated depreciation and amortization expense
included in the income statement of the Company and its Restricted Subsidiaries
for such period, plus (iv) any non-cash expense related to the issuance to
employees of the Company or any Restricted Subsidiary of the Company of options
to purchase Capital Stock of the Company or such Restricted Subsidiary, plus (v)
any charge related to any premium or penalty paid in connection with redeeming
or retiring any Debt prior to its stated maturity; provided, however, that there
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shall be excluded therefrom the Consolidated Cash Flow Available for Fixed
Charges (if positive) of any Restricted Subsidiary of the Company (calculated
separately for such Restricted Subsidiary in the same manner as provided above
for the Company) that is subject to a restriction which prevents the payment of
dividends or the making of distributions to the Company or another Restricted
Subsidiary of the Company to the extent of such restriction.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (excluding interest
income) of the Company and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees with respect to interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements;
(iv) Preferred Stock dividends of the Company and its Restricted Subsidiaries
(other than dividends paid in shares of Preferred Stock that is not Disqualified
Stock) declared and paid or payable; (v) accrued Disqualified Stock dividends of
the Company and its Restricted Subsidiaries, whether or not declared or paid;
(vi) interest on Debt guaranteed by the Company and its Restricted Subsidiaries;
and (vii) the portion of any
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Capital Lease Obligation paid during such period that is allocable to interest
expense.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
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net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary of the Company in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Restricted Subsidiary of the Company except to the extent
of the amount of dividends or other distributions actually paid to the Company
or a Restricted Subsidiary of the Company by such Person during such period, (c)
gains or losses on Asset Dispositions by the Company or its Restricted
Subsidiaries, (d) all extraordinary gains and extraordinary losses, (e) the
cumulative effect of changes in accounting principles, (f) non-cash gains or
losses resulting from fluctuations in currency exchange rates, (g) any non-cash
gain or loss realized on the termination of any employee pension benefit plan
and (h) the tax effect of any of the items described in clauses (a) through (g)
above; provided, further, that for purposes of any determination pursuant to the
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provisions of Section 1009 there shall further be excluded therefrom the net
income (but not net loss) of any Restricted Subsidiary of the Company that is
subject to a restriction which prevents the payment of dividends or the making
of distributions to the Company or another Restricted Subsidiary of the Company
to the extent of such restriction.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Disqualified Stock of such Person; provided that, with respect
--------
to the Company, adjustments following the date of this Indenture to the
accounting books and records of the Company in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Company by another
Person shall not be given effect to.
"Consolidated Tangible Assets" of any Person means the total amount of
assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles would be included on a
consolidated balance sheet of such Person and its Restricted Subsidiaries after
deducting therefrom all goodwill, trade
-7-
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under generally accepted accounting principles
would be included on such consolidated balance sheet; provided that, with
--------
respect to the Company, adjustments following the date of this Indenture to the
accounting books and records of the Company in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Company by another
Person shall not be given effect to.
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, New York, at which at any
particular time its corporate trust business shall be administered, which at the
date hereof is located at 114 West 47th Street, New York, New York 10036.
"corporation" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including any such obligations Incurred in connection with
the acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (including securities repurchase agreements but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business which are not overdue or which are being contested in good
faith), (v) every Capital Lease Obligation of such Person, (vi) all Receivables
Sales of such Person, together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith, (vii) all obligations to redeem Disqualified
Stock issued by such Person, (viii) every obligation under Interest Rate and
Currency Protection Agreements of such Person and (ix) every obligation of the
type referred to in clauses (i) through (viii) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by
-8-
(a) any Debt issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with generally accepted accounting principles, (b) any
Receivables Sale, shall be the amount of the unrecovered capital or principal
investment of the purchaser (other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company) thereof, excluding amounts representative of yield or
interest earned on such investment, (c) any Disqualified Stock, shall be the
maximum fixed redemption or repurchase price in respect thereof, (d) any Capital
Lease Obligation, shall be determined in accordance with the definition thereof,
or (e) any Permitted Interest Rate or Currency Protection Agreement, shall be
zero. In no event shall Debt include any liability for taxes.
"Default" means an event that with the passing of time or the giving
of notice or both shall constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, DTC for so
long as it shall be a clearing agency registered under the Exchange Act, or such
successor as the Company shall designate from time to time in an Officers'
Certificate delivered to the Trustee.
"Depository Securities Certification" has the meaning set forth in
Section 201.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Restricted Subsidiary of such Person or the holder thereof, in whole or in part,
on or prior to the final Stated Maturity of the Securities; provided, however,
-------- -------
that any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require the Company to
repurchase or redeem such Preferred Stock upon the occurrence of a Change of
Control occurring prior to the final Stated Maturity of the Securities shall not
constitute Disqualified Stock if the change of control provisions applicable to
such Preferred Stock are no more favorable to the holders of such Preferred
Stock than the provisions
-9-
applicable to the Securities contained in Section 1016 and such Preferred Stock
specifically provides that the Company will not repurchase or redeem any such
stock pursuant to such provisions prior to the Company's repurchase of such
Securities as are required to be repurchased pursuant to Section 1016.
"DTC" means The Depository Trust Company.
"Eagle River" means Eagle River Investments, L.L.C., a limited
liability company formed under the laws of the State of Washington.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-3" or higher, "A-" or higher or "A-" or
higher according to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Duff & Phelps Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act)) respectively, at the time as of which any
investment or rollover therein is made.
"Euroclear" means Chemical Bank, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act) and the rules and regulations thereunder.
"Exchange Offer" has the meaning set forth in the form of the
Securities contained in Section 202.
"Exchange Offer Registration Statement" has the meaning set forth in
the form of the Securities contained in Section 202.
"Exchange Security" means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise registered under the Securities Act and any Security with respect to
which the next preceding Predecessor Security of such Security was an Exchange
Security, and their Successor Securities.
-10-
"Expiration Date" has the meaning set forth in the definition of
"Offer to Purchase" in this Section 101.
"Global Security" means, as the context may require, any or all of the
Temporary Regulation S Global Security, the Permanent Regulation S Global
Security and the Restricted Global Security.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have a remaining weighted average life to maturity of not more than one year
from the date of Investment therein; provided that Government Securities which
--------
constitute Pledged Securities may have a remaining weighted average life to
maturity in excess of one year from the date of Investment therein.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
-------- -------
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business; and provided, further, that
-------- -------
the incurrence by a Restricted Subsidiary of the Company of a lien permitted
under clause (iv) of the second paragraph of Section 1011 shall not be deemed to
constitute a Guarantee by such Restricted Subsidiary of any Purchase Money Debt
of the Company secured thereby.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or
-11-
otherwise become liable in respect of such Debt or other obligation including by
acquisition of Subsidiaries or the recording, as required pursuant to generally
accepted accounting principles or otherwise, of any such Debt or other
obligation on the balance sheet of such Person (and "Incurrence", "Incurred",
"Incurrable" and "Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in generally accepted accounting principles
- -------- -------
that results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt and that neither the accrual
of interest nor the accretion of original issue discount shall be deemed an
Incurrence of Debt; provided, further, however, that the Company may elect to
-------- ------- -------
treat all or any portion of revolving credit debt of the Company or a Subsidiary
as being incurred from and after any date beginning the date the revolving
credit commitment is extended to the Company or a Subsidiary, by furnishing
notice thereof to the Trustee, and any borrowings or reborrowings by the Company
or a Subsidiary under such commitment up to the amount of such commitment
designated by the Company as Incurred shall not be deemed to be new Incurrences
of Debt by the Company or such Subsidiary.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Goldman, Sachs & Co., Bear, Stearns & Co.
Inc., Salomon Brothers Inc and Toronto Dominion Securities (USA) Inc.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other
-12-
Person, including any payment on a Guarantee of any obligation of such other
Person, but excluding any loan, advance or extension of credit to an employee of
the Company or any of its Restricted Subsidiaries in the ordinary course of
business, accounts receivable and other commercially reasonable extensions of
trade credit.
"Issue Date" means the date on which the Securities are first
authenticated and delivered under this Indenture.
"Issuers Request" or "Issuers Order" means a written request or order
signed in the name of the Issuers by (i) the Chief Executive Officer, the
President, an Executive Vice President or a Vice President of each of the
Company and Capital, and (ii) the Treasurer, Assistant Treasurer or Secretary of
each of the Company and Capital, and delivered to the Trustee.
"Joint Venture" means a corporation, partnership or other entity
engaged in one or more Telecommunications Businesses as to which the Company
(directly or through one or more Restricted Subsidiaries) exercises managerial
control and in which the Company owns (i) a 50% or greater interest, or (ii) a
40% or greater interest, together with options or other contractual rights,
exercisable not more than seven years after the Company's initial Investment in
such Joint Venture, to increase its interest to not less than 50%.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Managing Member" means Eagle River or Nextlink, Inc., or their
respective successors as Managing Members under the Company's third Amended and
Restated Limited Liability Company Agreement.
"Managing Member's Certificate" means a certificate signed by (i) the
Chief Executive Officer, President, an Executive Vice President or a Vice
President, and (ii) the Treasurer, Assistant Treasurer, Secretary or an
-13-
Assistant Secretary, of a Managing Member and delivered to the Trustee and
containing the statements provided for in Section 102.
"Marketable Securities" means: (i) Government Securities; (ii) any
time deposit account, money market deposit and certificate of deposit maturing
not more than 270 days after the date of acquisition issued by, or time deposit
of, an Eligible Institution; (iii) commercial paper maturing not more than 270
days after the date of acquisition issued by a corporation (other than an
Affiliate of the Company) with a rating, at the time as of which any investment
therein is made, of "P-1" or higher according to Moody's Investors Service,
Inc., "A-1" or higher according to Standard & Poor's Ratings Group or "A-1" or
higher according to Duff & Phelps Credit Rating Co. (or such similar equivalent
rating by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act)); (iv) any banker's
acceptances or money market deposit accounts issued or offered by an Eligible
Institution; (v) repurchase obligations with a term of not more than 7 days for
Government Securities entered into with an Eligible Institution; and (vi) any
fund investing exclusively in investments of the types described in clauses (i)
through (v) above.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes (including taxes payable upon payment
or other distribution of funds from a foreign subsidiary to the Company or
another subsidiary of the Company) required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Restricted Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or
-14-
in order to obtain a necessary consent to such Asset Disposition or by
applicable law, be repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition, (iv) appropriate amounts to be provided by such Person or any
Restricted Subsidiary thereof, as the case may be, as a reserve in accordance
with generally accepted accounting principles against any liabilities associated
with such assets and retained by such Person or any Restricted Subsidiary
thereof, as the case may be, after such Asset Disposition, including, without
limitation, liabilities under any indemnification obligations and severance and
other employee termination costs associated with such Asset Disposition, in each
case as determined by a Managing Member, in its reasonable good faith judgment
evidenced by a Managing Member's Certificate filed with the Trustee; provided,
--------
however, that any reduction in such reserve within twelve months following the
- -------
consummation of such Asset Disposition will be treated for all purposes of this
Indenture and the Securities as a new Asset Disposition at the time of such
reduction with Net Available Proceeds equal to the amount of such reduction, and
(v) any consideration for an Asset Disposition (which would otherwise constitute
Net Available Proceeds) that is required to be held in escrow pending
determination of whether a purchase price adjustment will be made, but amounts
under this clause (v) shall become Net Available Proceeds at such time and to
the extent such amounts are released to such Person.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of
-15-
the Company. The Offer shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the documents
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein). The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(b) the Expiration Date and the Purchase Date;
(c) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been determined
pursuant to Section 1013 or 1016) (the "Purchase Amount");
(d) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(e) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(f) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
-16-
(g) that interest (including Special Interest) on any Security not
tendered or tendered but not purchased by the Company pursuant to the Offer
to Purchase will continue to accrue;
(h) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest (including Special Interest) thereon shall
cease to accrue on and after the Purchase Date;
(i) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(j) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or the Paying Agent) receives not later
than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder tendered, the certificate
number of the Security the Holder tendered and a statement that such Holder
is withdrawing all or a portion of his tender;
(k) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
(l) that in the case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination
-17-
as requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered; and
(m) the CUSIP number or numbers of the Securities offered to be
purchased by the Company pursuant to the Offer to Purchase.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by (i) the Chief
Executive Officer, President, an Executive Vice President or a Vice President,
and (ii) the Treasurer, Assistant Treasurer, Secretary or an Assistant
Secretary, of the Company or of Capital, as applicable, and delivered to the
Trustee and containing the statements provided for in Section 102. One of the
officers signing an Officers' Certificate given pursuant to Section 1020 shall
be the principal executive, financial or accounting officer of the Company and
of Capital.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be counsel for the Company or Capital, and who shall be acceptable to the
Trustee, and containing the statements provided for in Section 102.
"Original Securities" means Securities that are not Exchange
Securities.
"Other Securities" has the meaning set forth in Section 201.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture (including, as of such date, all Securities represented by
Global Securities authenticated and delivered under this Indenture), except the
reduced portion or portions of any Global Security, as such reduction or
reductions shall have been endorsed on such Global Security by the Trustee as
provided herein and, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuers) in trust or set aside and
-18-
segregated in trust by the Issuers (if the Issuers shall act as their own
Paying Agents) for the Holders of such Securities; provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Issuers;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuers or any other obligor upon the Securities or any Affiliate of the
Issuers or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not an Issuer or any other obligor upon the Securities or
any Affiliate of the Issuers or of such other obligor.
"Owner Securities Certification" has the meaning set forth in Section
201.
"Paying Agent" means any Person authorized by the Issuers to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuers. The Trustee is hereby authorized by the Issuers to act as a
"Paying Agent" for the purposes of this Indenture, until such time as the
Issuers notify the Trustee in writing that such authorization is revoked.
"Permanent Regulation S Global Security" has the meaning set forth in
Section 201.
-19-
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Investment" means (i) any Investment in a Joint Venture
(including the purchase or acquisition of any Capital Stock of a Joint Venture),
provided the aggregate amount of all outstanding Investments pursuant to this
clause (i) in Joint Ventures in which the Company owns, directly or indirectly,
a less than 50% interest shall not exceed $25 million, (ii) any Investment in
any Person as a result of which such Person becomes a Restricted Subsidiary, or,
subject to the proviso to clause (i) of this definition, becomes a Joint Venture
of the Company, (iii) any Investment in Marketable Securities, (iv) Investments
in Permitted Interest Rate or Currency Protection Agreements, and (v)
Investments made as a result of the receipt of noncash consideration from an
Asset Disposition that was made pursuant to and in compliance with Section 1013
of this Indenture.
"Permitted Liens" means (a) Liens for taxes, assessments, governmental
charges or claims which are not yet delinquent or which are being contested in
good faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with generally accepted
accounting principles shall have been made therefor; (b) other Liens incidental
to the conduct of the Company's and its Restricted Subsidiaries' business or the
ownership of its property and assets not securing any Debt, and which do not in
the aggregate materially detract from the value of the Company's and its
Restricted Subsidiaries' property or assets when taken as a whole, or materially
impair the use thereof in the operation of its business; (c) Liens with respect
to assets of a Restricted Subsidiary granted by such Restricted Subsidiary to
the Company to secure Debt owing to the Company; (d) pledges and deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of statutory obligations (including to
secure government contracts); (e) deposits made to secure the performance of
tenders, bids, leases, and other obligations of like nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money); (f) zoning restrictions, servitudes,
-20-
easements, rights-of-way, restrictions and other similar charges or encumbrances
incurred in the ordinary course of business which, in the aggregate, do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Company or its Restricted
Subsidiaries; (g) Liens arising out of judgments or awards against the Company
or any Restricted Subsidiary with respect to which the Company or such
Restricted Subsidiary is prosecuting an appeal or proceeding for review and the
Company or such Restricted Subsidiary is maintaining adequate reserves in
accordance with generally accepted accounting principles; (h) any interest or
title of a lessor in the property subject to any lease other than a Capital
Lease; and (i) any statutory warehousemen's, materialmen's or other similar
Liens for sums not then due and payable (or which, if due and payable, are being
contested in good faith and with respect to which adequate reserves are being
maintained to the extent required by generally accepted accounting principles).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"Pledge Account" means an account established with the Trustee
pursuant to the terms of the Pledge Agreement for the deposit of the Pledged
Securities purchased by the Company with a portion of the net proceeds from the
sale of the Securities to the Initial Purchasers.
"Pledge Agreement" means the Collateral Pledge and Security Agreement,
dated as of the date of this Indenture, by and between the Trustee and the
Company, governing the disbursement of funds from the Pledge Account.
"Pledged Securities" means the securities purchased by the Company with a
portion of the net proceeds from the sale of the Securities, which shall
initially consist of Government Securities, to be deposited in the Pledge
Account.
"Predecessor Security" of any particular Security means every previous
Security issued before, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to
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evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Dividends" for any Person means for any period the quotient
determined by dividing the amount of dividends and distributions paid or accrued
(whether or not declared) on Preferred Stock of such Person during such period
calculated in accordance with generally accepted accounting principles, by 1
minus the maximum statutory income tax rate then applicable to the Company
(expressed as a decimal).
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Purchase Agreement" means the Purchase Agreement, dated as of April
18, 1996, between the Issuers and the Initial Purchasers, as such agreement may
be amended from time to time.
"Purchase Date" has the meaning set forth in the definition of "Offer
to Purchase" in this Section 101.
"Purchase Money Debt" means (i) Acquired Debt Incurred in connection
with the acquisition of Telecommunications Assets and (ii) Debt of the Company
or of any Restricted Subsidiary of the Company (including, without limitation,
Debt represented by Capital Lease Obligations, Vendor Financing Facilities,
mortgage financings and purchase money obligations) Incurred for the purpose of
financing all or any part of the cost of construction, acquisition or
improvement by the Company or any Restricted Subsidiary of the Company or any
Joint Venture of any Telecommunications Assets of the Company, any Restricted
Subsidiary of the Company or any Joint Venture, and including any related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, supplemented, modified or
restated from time to time.
"readily marketable cash equivalents" means (i) marketable securities
issued or directly and unconditionally guaranteed by the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States; (ii) marketable direct obligations issued by any
state of the United States of America or any poli-
-22-
tical subdivision of any such state or any public instrumentality thereof and,
at the time of acquisition, having the highest rating obtainable from either
Standard & Poor's Rating Group or Moody's Investors Service, Inc.; (iii)
commercial paper maturing no more than 180 days from the date of acquisition
thereof and, at the time of acquisition, having a rating of P-1 according to
Moody's Investors Service, Inc., "A-1" or higher according to Standard & Poor's
Ratings Group or "A-1" or higher according to Duff & Phelps Credit Rating Co.
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)); and (iv) certificates of deposit or bankers' acceptance maturing within
one year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia having unimpaired capital and surplus of not less than
$100,000,000.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money in
respect of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 10% or more of the Outstanding Common Equity of such
Person (or, in the case of
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a Person that is not a corporation, 10% or more of the equity interest in such
Person) or (b) 10% or more of the combined voting power of the Voting Stock of
such Person.
"Resale Registration Statement" has the meaning set forth in the Form
of the Securities contained in Section 202.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller 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 Global Security" has the meaning set forth in Section 201.
"Restricted Period" has the meaning set forth in Section 201.
"Restricted Securities" means the Restricted Global Security, Other
Securities and any Successor Security, other than (i) any Security issued upon a
transfer or exchange for which a certificate substantially in the form set forth
in (a) Annex D is required to be provided and is provided pursuant to Section
305(c)(3), (b) Annex E is required to be provided and is provided pursuant to
Section 305(c)(4) or (c) Annex G-2 is required to be provided and is provided
pursuant to Section 305(c)(6), (ii) any Exchange Security and (iii) any Security
issued in exchange for or in lieu of any Security specified in Clause (i) or
(ii) or any Security issued in exchange therefor or in lieu thereof.
"Restricted Subsidiary" of the Company means any Subsidiary, whether
existing on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
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"Rule 144A" means the Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 365 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Securities" means the Exchange Securities and the Original
Securities.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305(b).
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act.
"Special Interest" has the meaning set forth in the form of Security
contained in Section 202. Unless the context otherwise requires, references
herein to "interest" on the Securities shall include Special Interest.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest, as the case may be, is due and payable.
-25-
"Step-Down Date" has the meaning set forth in the form of the Security
contained in Section 202.
"Step-Up" has the meaning set forth in the form of the Security
contained in Section 202.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
permitted for so long as any default in the payment of principal (or premium, if
any) or interest on the Securities exists; (ii) in the event that any other
default that with the passing of time or the giving of notice, or both, would
constitute an Event of Default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice or for the period until such default has been cured or waived or
ceased to exist and any acceleration of the Securities has been rescinded or
annulled, whichever period is shorter (which Debt may provide (A) no new period
of payment blockage may be commenced by a payment blockage notice unless and
until 360 days have elapsed since the effectiveness of the immediately prior
notice, (B) no nonpayment default that existed or was continuing on the date of
delivery of any payment blockage notice to such holders (or such agents or
trustees) shall be, or be made, the basis for a subsequent payment blockage
notice and (C) failure of the Company to make payment on such Debt when due or
within any applicable grace period, whether or not on account of such payment
blockage provisions, shall constitute an event of default thereunder); and (iii)
such Debt may not (x) provide for payments of principal of such Debt at the
stated maturity thereof or by way of a sinking fund applicable thereto or by way
of any mandatory redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Securities or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made
-26-
by the Company) of such other Debt at the option of the holder thereof prior to
the final Stated Maturity of the Securities, other than a redemption or other
retirement at the option of the holder of such Debt (including pursuant to an
offer to purchase made by the Company) which is conditioned upon a change of
control of the Company pursuant to provisions substantially similar to those of
Section 1016 (and which shall provide that such Debt will not be repurchased
pursuant to such provisions prior to the Company's repurchase of the Securities
required to be repurchased by the Company pursuant to the provisions of Section
1016.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Tax Amount" means for each fiscal year of any Person (a) the
aggregate amount of income or gain of such Person over the aggregate amount of
loss, deduction or expense of such Person multiplied by (b) the maximum marginal
federal and applicable state income tax rates.
"Telecommunications Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or intended for
use in connection with a Telecommunications Business.
"Telecommunications Business" means the business of (i) transmitting,
or providing services relating to the transmission of, voice, video or data
through owned or leased transmission facilities, (ii) creating, developing or
marketing communications related network equipment, software
-27-
and other devices for use in a Telecommunication Business or (iii) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in (i) or (ii) above and shall, in any event,
include all businesses in which the Company or any of its Subsidiaries are
engaged on the Issue Date; provided that the determination of what constitutes a
--------
Telecommunications Business shall be made in good faith by the Managing Member
of the Company, which determination shall be conclusive.
"Temporary Regulation S Global Security" has the meaning set forth in
Section 201.
"Transferee Securities Certification" has the meaning set forth in
Section 305(c)(2).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means (1) any Subsidiary of the Company
designated as such by the Managing Member of the Company as set forth below
where (a) neither the Company nor any of its other Subsidiaries (other than
another Unrestricted Subsidiary) (i) provides credit support for, or Guarantee
of, any Debt of such Subsidiary or any Subsidiary of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Debt) or (ii) is
directly or indirectly liable for any Debt of such Subsidiary or any Subsidiary
of such Subsidiary, and (b) no default with respect to any Debt of such
Subsidiary or any Subsidiary of such Subsidiary (including any right which the
holders thereof may have to take enforcement action against such Subsidiary)
would permit (upon notice, lapse of time or both) any holder of any other Debt
of the Company and its Restricted Subsidiaries to declare a default on such
other Debt or cause the payment thereof to be accelerated or payable prior to
its final scheduled maturity and (2) any Subsidiary of an Unrestricted
Subsidiary. The Managing Member may designate any Subsidiary to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of,
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or owns or holds any Lien on any property of, any other Subsidiary of the
Company which is not a Subsidiary of the Subsidiary to be so designated or
otherwise an Unrestricted Subsidiary, provided that either (x) the Subsidiary to
--------
be so designated has total assets of $1,000 or less or (y) immediately after
giving effect to such designation, the Company could incur at least $1.00 of
additional Debt pursuant to the first paragraph of Section 1007 and provided,
--------
further, that the Company could make a Restricted Payment in an amount equal to
- -------
the greater of the fair market value and the book value of such Subsidiary
pursuant to Section 1009 and such amount is thereafter treated as a Restricted
Payment for the purpose of calculating the aggregate amount available for
Restricted Payments thereunder. The Managing Member may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, provided that,
--------
immediately after giving effect to such designation, the Company could incur at
least $1.00 of additional Debt pursuant to the first paragraph of Section 1007.
"Vendor Financing Facility" means any agreements between the Company
or a Restricted Subsidiary of the Company and one or more vendors or lessors of
equipment to the Company or any of its Restricted Subsidiaries (or any affiliate
of any such vendor or lessor) providing financing for the acquisition by the
Company or any such Restricted Subsidiary of equipment from any such vendor or
lessor.
"Vice President", when used with respect to the Company, Capital or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person 99% or more 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 Restricted
Subsidiaries of such Person or by such Person and one or more Wholly-Owned
Restricted Subsidiaries of such Person.
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SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Issuers to the Trustee to take
any action under any provision of this Indenture, the Issuers shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act and under this Indenture. Each such certificate or opinion, and
any certificate evidencing a determination required to be made by a Managing
Member of the Company under this Indenture, shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Issuers, a Managing
Member's Certificate, if to be given by a Managing Member or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one docu-
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ment, but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate of an officer of the Issuers may be based, insofar as
it relates to legal matters, upon an opinion of counsel submitted therewith,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which his certificate is based
is erroneous. Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of an officer or officers of the Issuers
submitted therewith stating the information on which counsel is relying, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Issuers. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Issuers,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing pursuant to this Section 104 may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
-31-
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuers in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
--------
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
--------
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Issuers from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
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automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Issuers, at their own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
--------
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Issuers'
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Issuers in writing and to
each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
--------
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration
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Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Issuers.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuers shall be sufficient
for every purpose hereunder if delivered in writing to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Issuers by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Issuers
addressed to the Company at the address of its principal office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if (i) in the case of a Global Security, in writing by facsimile and/or by
overnight mail to the Depository, and (ii) in the case of securities other than
Global Securities, in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the
-34-
Security Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. The Application of Trust Indenture Act.
--------------------------------------
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Issuers shall
bind their successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Purchase
Date or at the Stated Maturity, provided that no interest shall accrue for the
--------
period from and after such Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Original Securities, the Exchange Securities and the Trustee's
certificates of authentication thereof shall be in substantially the forms set
forth in this
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Article, with such appropriate legends, insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
In certain cases described elsewhere herein, the legends set forth in
the first five paragraphs of Section 202 may be omitted from Securities issued
hereunder.
Securities offered and sold in their initial distribution in reliance
on Regulation S shall be initially issued in the form of temporary Global
Securities in fully registered form without interest coupons, substantially in
the form of Security set forth in Sections 202 and 203, with such applicable
legends as are provided for in Section 202. Such temporary Global Securities
shall be registered in the name of the Depository or its nominee and deposited
with the Trustee, at its Corporate Trust Office, as custodian for the
Depository, duly executed by the Issuers and authenticated by the Trustee as
hereinafter provided, for credit by the Depository to the respective accounts of
the beneficial owners of the Securities represented thereby (or such other
accounts as they may direct), provided that upon such deposit all such
Securities shall be credited to or through accounts maintained at the Depository
by or on behalf of Euroclear or CEDEL. Until such time as the Restricted Period
(as defined below) shall have expired, such temporary Global Securities,
together with their Successor Securities which are Global Securities other than
the Restricted Global Security, shall be referred to herein as a "Temporary
Regulation S Global Security". After such time as the Restricted Period shall
have expired and the certifications referred to below in the next succeeding
paragraph shall have been provided, interests in such Temporary Regulation S
Global Securities shall be exchanged for interests in like Global Securities,
referred to herein collectively as the "Permanent Regulation S Global Security",
substantially in the form of Security set forth in Sections 202 and 203, with
such applicable legends as are provided for in Section 202.
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Such Permanent Regulation S Global Securities shall be registered in the name of
the Depository or its nominee and deposited with the Trustee, at its Corporate
Trust Office, as custodian for the Depository, duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). The aggregate principal
amount of the Temporary Regulation S Global Security or the Permanent Regulation
S Global Security may be increased or decreased from time to time by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided. As used herein, the term "Restricted Period" means the
period of 40 days commencing on the day after the latest of (a) the day on which
the Securities are first offered to persons other than distributors (as defined
in Regulation S) in reliance on Regulation S and (b) the Closing Date.
Interests in a Temporary Regulation S Global Security may be exchanged
for interests in a Permanent Regulation S Global Security only after (a) the
expiration of the Restricted Period, (b) delivery by a beneficial owner of an
interest therein to Euroclear or CEDEL of a written certification (an "Owner
Securities Certification") substantially in the form of Annex A hereto, and (c)
upon delivery by Euroclear or CEDEL to the Trustee of a written certification (a
"Depository Securities Certification") substantially in the form attached hereto
as Annex B. Upon satisfaction of such conditions, the Trustee will exchange the
portion of the Temporary Regulation S Global Security covered by such
certification for interests in a Permanent Regulation S Global Security. The
delivery by such Holder of a beneficial interest in such Temporary Regulation S
Global Security of such certification shall constitute an irrevocable
instruction by such holder to Euroclear or CEDEL, as the case may be, to
exchange such Holder's beneficial interest in the Temporary Regulation S Global
Security for a beneficial interest in the Permanent Regulation S Global Security
upon the expiration of the Restricted Period in accordance with the next
succeeding paragraph.
Upon:
(i) the expiration of the Restricted Period;
(ii) receipt by Euroclear or CEDEL, as the case may be, of Owner
Securities Certifications described in the preceding paragraph;
-38-
(iii) receipt by the Depository of:
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Depository to credit or cause to
be credited to a specified Agent Member's account a beneficial interest in a
Permanent Regulation S Global Security in a principal amount equal to that of
the beneficial interest in a corresponding Temporary Regulation S Global
Security for which the necessary certifications have been delivered; and
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member, and
the Euroclear or CEDEL account for which such Agent Member's account is held, to
be credited with, and the account of the Agent Member to be debited for, such
beneficial interest; and
(iv) receipt by the Trustee of notification from the Depository of the
transactions described in (iii) above and from Euroclear or CEDEL, as the case
may be, of Depository Securities Certifications, the Trustee, as Security
Registrar, shall instruct the Depository to reduce the principal amount of such
Temporary Regulation S Global Security and to increase the principal amount of
such Permanent Regulation S Global Security, by the principal amount of the
beneficial interest in such Temporary Regulation S Global Security to be so
transferred, and to credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in such Permanent
Regulation S Global Security having a principal amount equal to the amount by
which the principal amount of such Temporary Regulation S Global Security was
reduced upon such transfer.
Securities offered and sold in their initial distribution in reliance
on Rule 144A shall be issued in the form of one or more Global Securities
(collectively, and, together with their Successor Securities, the "Restricted
Global Security") in fully registered form without interest coupons,
substantially in the form of Security set forth in Sections 202 and 203, with
such applicable legends as are provided for in Section 202, except as otherwise
permitted herein. Such Restricted Global Security shall be registered in the
name of the Depository or its nominee and deposited with the Trustee, at its
Corporate Trust Office, as custodian for the Depository, duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided, for credit by
the Depository to the respective accounts of beneficial owners of the Securities
represented thereby (or
-39-
such other accounts as they may direct). The aggregate principal amount of the
Restricted Global Security may be increased or decreased from time to time by
adjustments made on the records of the Trustee, as custodian for the Depository,
in connection with a corresponding decrease or increase in the aggregate
principal amount of the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security, as hereinafter provided.
Securities offered and sold in their initial distribution other than
in reliance on Regulation S or Rule 144A (collectively, "Other Securities")
shall not be issued in the form of a Global Security or in any other form
intended to facilitate book-entry trading in the beneficial interests of such
Securities.
SECTION 202. Form of Face of Security.
------------------------
[If a Global Security not to be held by The Depository Trust Company,
then insert -- THIS SECURITY 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 SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY 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.]
[If a Global Security to be held by The Depository Trust Company, then
insert -- 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.]
[If a Temporary Regulation S Global Security, then insert -- THIS
SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 305(c) OF THE INDENTURE, INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY NOT BE OFFERED OR SOLD TO A
-40-
U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE
EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE), AND NO
TRANSFER OR EXCHANGE OF AN INTEREST IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE MADE FOR AN INTEREST IN A RESTRICTED GLOBAL SECURITY OR IN A
PERMANENT REGULATION S GLOBAL SECURITY UNTIL AFTER THE LATER OF THE DATE OF
EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE OWNER SECURITIES
CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO SUCH
INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, TO
THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT U.S.
PERSONS.]
[If a Permanent Regulation S Security, then insert -- THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON,
UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If a Restricted Security, then insert -- THE SECURITIES EVIDENCED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A)
ABOVE OR TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.]
12 1/2% SENIOR NOTES DUE April 15, 2006
CUSIP NUMBER: __________
No. __________ $_______________
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NEXTLINK Communications, L.L.C., a limited liability company formed
under the laws of the State of Washington (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
and NEXTLINK Capital, Inc., a Washington corporation and a wholly-owned
subsidiary of the Company (herein called "Capital", and together with the
Company, the "Issuers"), for value received, hereby promises to pay to
__________, or registered assigns, the principal sum of __________ Dollars on
April 25, 2006, and to pay interest thereon from April 25, 1996 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on October 15 and April 15 in each year, commencing October
15, 1996 at the rate of 12 1/2% per annum, until the principal hereof is paid or
made available for payment [If Original Securities, then insert: provided,
--------
however, that if (i) the Issuers have not filed a registration statement under
- -------
the Securities Act of 1933, as amended (the "Securities Act"), registering a
security substantially identical to this Security (except that such Security
will not contain terms with respect to the Special Interest payments described
below or transfer restrictions) pursuant to an exchange offer (the "Exchange
Offer") (the "Exchange Registration Statement") by May 16, 1996, or (ii) the
Exchange Registration Statement relating to the Exchange Offer (or, in lieu
thereof, a registration statement registering this Security for resale (a
"Resale Registration Statement")) has not become or been declared effective by
August 23, 1996, or (iii) the Exchange Offer has not been completed within 30
business days after the date on which the Exchange Registration Statement has
become or been declared effective initially (if the Exchange Offer is then
required to be made pursuant to the Exchange and Registration Rights Agreement
(the "Exchange and Registration Rights Agreement"), dated as of April 25, 1996,
by and between the Issuers, the Purchasers (as defined therein) and the Holders
from time to time of the Securities) or (iv) either the Exchange Registration
Statement or, if applicable, the Resale Registration Statement is filed and
declared effective (except as specifically permitted therein) but shall
thereafter cease to be effective without being succeeded promptly by an
additional registration statement filed and declared effective, in each case
(i) through (iv) upon the terms and conditions set forth in the Exchange and
Registration Rights Agreement (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then interest will accrue (in
addition to the stated interest on the Securities) (the "Step-Up") at a rate
of 0.25% per annum, determined daily, on the principal amount of the
Securities, for the period from the occurrence of the Registration
-42-
Default until such time (the "Step-Down Date") as no Registration Default is in
effect and, provided, further, that for each 90-day period that the Registration
-------- -------
Default continues, the per annum rate of such Special Interest shall increase
(each such increase, an "Additional Step-Up") by an additional 0.25% per annum,
provided that such rate shall in no event exceed 1.0% per annum in the aggregate
until the Step-Down Date (after which the interest rate will be restored to its
initial rate). The Issuers shall provide the Trustee with written notice of the
date of any Registration Default and the Step-Down Date. Interest accruing as a
result of the Step-Up or an Additional Step-Up is referred to herein as "Special
Interest." Accrued Special Interest, if any, shall be paid semi-annually in
arrears on October 15 and April 15 in each year; and the amount of accrued
Special Interest shall be determined on the basis of a 365 or 366 day year, as
the case may be, and the number of days actually elapsed. Any accrued and
unpaid interest (including Special Interest) on this Security upon the issuance
of an Exchange Security (as defined in the Indenture) in exchange for this
Security shall cease to be payable to the Holder hereof but such accrued and
unpaid interest (including Special Interest) shall be payable on the next
Interest Payment Date for such Exchange Security to the Holder thereof on the
related Regular Record Date.] 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 Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be March 15 or September 15 (whether
or not a Business Day), as the case may be, next 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 Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
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 Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
In the case of a default in payment of principal and premium, if any,
upon acceleration or redemption, interest shall be payable pursuant to the
preceding paragraph on such overdue principal (and premium, if any),
-43-
such interest shall be payable on demand and, if not so paid on demand, such
interest shall itself bear interest at the rate of 1% 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
Security will be made at the corporate trust office of the Trustee and at the
office or agency of the Issuers 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 Issuers 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
-------- -------
Issuers 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.
The Company shall enter into the Pledge Agreement (as defined in the
Indenture) and use a portion of the net proceeds of the sale of the Securities
to the Initial Purchasers (as defined in the Indenture) to purchase the
securities, which shall initially consist of Government Securities (as defined
in the Indenture), to be pledged to the Trustee (the "Pledged Securities") for
the benefit of the Holders of the Securities in such amount as will be
sufficient upon receipt of scheduled interest and principal payments of such
securities, in the opinion of a nationally recognized firm of independent public
accountants selected by the Company, to provide for payment in full of the first
six scheduled interest payments due on the Securities. The Pledged Securities
will be pledged by the Company to the Trustee for the benefit of the Holders of
the Securities and will be held by the Trustee in the Pledge Account (as defined
in the Indenture) pending disbursement pursuant to the Pledge Agreement.
Reference is hereby made to the further provisions of this Security
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 Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-44-
IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed.
Dated:
NEXTLINK COMMUNICATIONS, L.L.C.
By NEXTLINK, INC.:
By_______________________________
Title:
Attest:
______________________________
Title:
NEXTLINK CAPITAL, INC.
By_______________________________
Title:
Attest:
______________________________
Title:
SECTION 203. Form of Reverse of Security.
---------------------------
(a) Temporary Regulation S Global Security. The form of reverse of
--------------------------------------
a Temporary Regulation S Global Security shall be as set forth below in this
Section 203(a).
This Temporary Regulation S Global Security is one of a duly
authorized issue of Securities of the Issuers designated as its Senior Notes due
April 15, 2006 (the "Securities") issued under an Indenture, dated as of April
25, 1996 (herein called the "Indenture"), between the Issuers and United States
Trust Company of New York, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture). The Securities
-45-
are limited in aggregate principal amount to $350,000,000. Reference is hereby
made to the Indenture and all indentures supplemental thereto for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuers, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
Until this Temporary Regulation S Global Security is exchanged for a
Permanent Regulation S Global Security, the Holder hereof shall not be entitled
to receive payments of interest hereon; until so exchanged in full, this
Temporary Regulation S Global Security shall in all other respects be entitled
to the same benefits as other Securities under the Indenture.
This Temporary Regulation S Global Security is exchangeable in whole
or in part for one or more Permanent Regulation S Global Securities or
Restricted Global Securities only (i) on or after the expiration of the
Restricted Period and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 3 of the Indenture. Upon
exchange of this Temporary Regulation S Global Security for one or more
Permanent Regulation S Global Securities or Restricted Global Securities, the
Trustee shall cancel this Temporary Regulation S Global Security.
This Temporary Regulation S Global Security shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Temporary
Regulation S Global Security shall be governed by and construed in accordance
with the laws of the State of New York.
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITIES
The following exchanges of a part of this Temporary Regulation S
Global Security for other Global Securities have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Security Signature of
Principal Amount of Principal Amount of following such decrease authorized officer
Date of Exchange this Global Security this Global Security (or increase) of Trustee
- ---------------- --------------------- --------------------- ------------------------ ------------------
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(b) Securities other than a Temporary Regulation S Global Security.
--------------------------------------------------------------
The form of reverse of all Securities other than a Temporary Regulation S Global
Security shall be as set forth below in this Section 203(b).
This Security is one of a duly authorized issue of Securities of the
Issuers designated as its Senior Notes due April 15, 2006 (the "Securities")
issued under an Indenture, dated as of April 25, 1996 (herein called the
"Indenture"), between the Issuers and United States Trust Company of New York,
as trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture). The Securities are limited in aggregate principal
amount to $350,000,000. Reference is hereby made to the Indenture and all
indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuers, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail to each Holder of Securities to be redeemed at
such Holder's address appearing in the Security Register, in amounts of $1,000
or an integral multiple of $1,000, at any time on or after April 15, 2001 and
prior to maturity, as a whole or in part, at the election of the Issuers, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued and unpaid interest (including Special Interest) to but excluding
the Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment that is on or
prior to the Redemption Date), if redeemed during the 12-month period beginning
April 15, of each of the years indicated below:
Year Redemption
---- Price
----------
2001 106.250%
2002 104.167%
2003 102.083%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
-47-
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Securities are further subject to redemption prior to April 15,
2001 only in the event that on or before April 15, 1999 the Company receives net
proceeds from any sale of its Common Equity, in which case the Company may, at
its option, use all or a portion of any such net proceeds to redeem Securities
in a principal amount of up to an aggregate amount equal to 33 1/3% of the
original principal amount of the Securities, provided, however, that Securities
-------- -------
in an amount equal to at least $175 million remain Outstanding after such
redemption. Such redemption must occur on a Redemption Date within 90 days of
any such sale and upon not less than 30 nor more than 60 days' notice by mail to
each Holder of Securities to be redeemed at such Holder's address appearing in
the Security Register, in amounts of $1,000 or an integral multiple of $1,000 at
a Redemption Price of 112.50% of their principal amount plus accrued and unpaid
interest (including Special Interest), if any to but excluding the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date).
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if (i) a
Change of Control occurs or (ii) certain Net Available Proceeds are available to
the Issuers as a result of any Asset Disposition, the Issuers shall be required
to make an Offer to Purchase for all or a specified portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of like
tenor for the unredeemed or unpurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Security,
-48-
or (ii) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth
therein.
Unless the context otherwise requires, the Original Securities (as
defined in the Indenture) and the Exchange Securities (as defined in the
Indenture) shall constitute one series for all purposes under the Indenture,
including without limitation, amendments, waivers, redemptions and Offers to
Purchase.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Securities under the Indenture at
any time by the Issuers and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Issuers 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 Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuers, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security 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 Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuers 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 Issuers and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and like tenor
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
-49-
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, subject to a minimum
initial purchase amount of $100,000 for Other Securities. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like tenor and aggregate principal amount of Securities 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 Issuers 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 Security for registration of
transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and none of
the Issuers, the Trustee or any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months; provided, however, that Special Interest shall be
-------- -------
computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-50-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Issuers pursuant to Section 1013 or 1016 of the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Issuers pursuant to Section 1013 or 1016 of the Indenture, state the amount:
$___________
Dated:________________ Your Signature:__________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:____________________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in 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.
SECTION 204. Form of Trustee's Certificate of
Authentication.
--------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
United States Trust Company of New York,
as Trustee
By ____________________
Authorized Signatory
-51-
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $350,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1013 or 1016. The Issuers may issue Exchange Securities from time to
time pursuant to an Exchange Offer or otherwise, in each case pursuant to a
Board Resolution of Capital and a resolution of the Managing Member of the
Company, conclusively evidenced by a Managing Member's Certificate, subject to
Section 303, included in an Officers' Certificate delivered to the Trustee, in
authorized denominations in exchange for a like principal amount of Original
Securities. Upon any such exchange the Original Securities shall be cancelled
in accordance with Section 309 and shall no longer be deemed Outstanding for any
purpose. In no event shall the aggregate principal amount of Original
Securities and Exchange Securities Outstanding exceed $350,000,000.
The Securities shall be known and designated as the "12 1/2% Senior
Notes due April 15, 2006" of the Issuers. The Stated Maturity of the Securities
shall be April 15, 2006. The Securities shall bear interest at the rate of
12 1/2% per annum, from April 25, 1996 or from the most recent Interest Payment
Date thereafter to which interest has been paid or duly provided for, as the
case may be, payable semi-annually on October 15 and April 15, commencing
October 15, 1996, until the principal thereof is paid or made available for
payment; provided, however, with respect to Original Securities, if there has
-------- -------
been a Registration Default, a Step-Up will occur and the Original Securities
will from then bear Special Interest and, for each 90-day period that the
Registration Default continues, an Additional Step-Up will occur and the per
annum rate of such Special Interest shall increase by an additional 0.25% per
annum, provided that such rate shall in no event exceed 1.0% per annum in the
aggregate, until the Step-Down Date (after which the interest rate will be
restored to its initial rate). Accrued Special Interest, if any, shall be paid
in cash in arrears semi-annually on October 15 and April 15 in each year, the
amount of accrued Special Interest shall be determined on the basis of the
number of days actually elapsed and computed as provided in Section 310.
-52-
In the case of a default in payment of principal and premium, if any,
upon acceleration or redemption, 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 1% 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.
The principal of and premium, if any, and interest on the Securities
shall be payable at the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Issuers for such purpose; provided,
--------
however, that at the option of the Issuers 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.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1013 and 1016.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subject to defeasance at the option of the
Issuers as provided in Article Twelve.
Unless the context otherwise requires, the Original Securities and the
Exchange Securities shall constitute one series for all purposes under this
Indenture, including without limitation, amendments, waivers, redemptions and
Offers to Purchase.
SECTION 302. Denominations.
-------------
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, subject to a minimum
initial purchase amount of $100,000 for Other Securities.
-53-
SECTION 303. Execution, Authentication, Delivery
and Dating.
-----------------------------------
The Securities shall be executed on behalf of the Issuers by the Chief
Executive Officer, President, an Executive Vice President or a Vice President of
the Company and Capital, attested by the Secretary of the Company and Capital.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company and Capital shall bind
the Issuers, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Securities executed by the Issuers to
the Trustee for authentication, together with an Issuers Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Issuers Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of a Registration Statement under the
Securities Act with respect thereto, the Issuers may deliver Exchange Securities
executed by the Issuers to the Trustee for authentication, together with an
Issuers Order for the authentication and delivery of such Exchange Securities
and a like principal amount of Original Securities for cancellation in
accordance with Section 309, and the Trustee in accordance with the Issuers
Order shall authenticate and deliver such Securities. In authenticating such
Exchange Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Exchange Securities has been established by or
pursuant to a resolution of the Managing Member, conclusively evidenced by
a Managing Member's Certificate as permitted by Section 301, that such form
has been established in conformity with the provisions of this Indenture;
-54-
(b) if the terms of such Exchange Securities have been established by
or pursuant to a resolution of the Managing Member, conclusively evidenced
by a Managing Member's Certificate as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that such Exchange Securities have been duly and validly issued in
accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein; and
(d) that the issuance of the Exchange Securities in exchange for the
Original Securities has been effected in compliance with the Securities
Act.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Exchange Securities if the issue of such Exchange
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Exchange Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Issuers may
execute, and upon Issuers Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
-55-
If temporary Securities are issued, the Issuers will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Issuers designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Issuers shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like tenor and principal amount of definitive
Securities of authorized denominations. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. Global Securities; Registration,
Registration of Transfer and Exchange.
-------------------------------------
(a) Global Securities. The provisions of Clauses (1) through (7)
-----------------
below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depository or a nominee thereof and
delivered to the Depository or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depository or a
nominee thereof unless (A) the Depository (i) has notified the Issuers that
it is unwilling or unable to continue as Depository for such Global
Security and the Issuers thereupon fail to appoint a successor Depository
or (ii) has ceased to be a clearing agency registered under the Exchange
Act, (B) the Issuers, at their option, notify the Trustee in writing that
they elect to cause the issuance of the Securities in definitive registered
certificated form, (C) there shall have occurred and be continuing a
Default or an Event of Default with respect to the Securities evidenced by
such Global Security, or (D) pursuant to the following sentence.
Beneficial interests in a Global Security may, subject to the restrictions
on the transferability of the Securities, be exchanged for certificated
Securities upon request but only upon at least 20 days' prior written
notice
-56-
given to the Trustee by or on behalf of the Depository (in accordance with
the Depository's customary procedures) and will bear the applicable legends
set forth in Section 202.
(3) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf
of the Depository or its nominee to the Trustee, as Security Registrar, for
exchange or cancellation as provided in this Article Three. If any Global
Security is to be exchanged for other Securities or cancelled in part, or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, such Global Security shall be so
surrendered for exchange or cancellation as provided in this Article Three
or, if the Trustee is acting as custodian for the Depository or its nominee
(or is party to a similar arrangement) with respect to such Global
Security, the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or cancelled, or the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, in each case by means of an
appropriate adjustment made on the records of the Trustee, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the
Depository or its authorized representatives to make a corresponding
adjustment to its records (including by crediting or debiting any Agent
Member's account as necessary to reflect any transfer or exchange of a
beneficial interest pursuant to Section 305(c)). Upon any such surrender
or adjustment of a Global Security, the Trustee shall, subject to
Section 305(a)(2) and as otherwise provided in this Article Three,
authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depository or its
authorized representative. Upon the request of the Trustee in connection
with the occurrence of any of the events specified in the preceding
paragraph, the Issuers shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Depository or its authorized representative
which is given or made pursuant to this Article Three if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
-57-
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article Three, Section 906, 1013,
1016 or 1108 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depository or a nominee thereof.
(5) None of the Company, Capital, the Trustee, any agent of the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the Depository's records (or
the records of the participant of such Depository) relating to or payments
made on account of beneficial ownership interests of a Global Security or
for maintaining, supervising or reviewing any records of the Depository
relating to such beneficial ownership interests.
(6) Subject to the provisions in the legends required by
Section 202 above, the registered Holder may grant proxies and otherwise
authorize any Person, including Agent Members and Persons who may hold
interests in Agent Members, to take any action that such Holder is
entitled to take under this Indenture.
(7) Neither Agent Members nor any other Person on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security held on their behalf by the Depository or
under the Global Security, and the Depository may be treated by the
Issuers, the Trustee and any agent of the Issuers or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers,
the Trustee or any agent of the Issuers or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security. With respect to any Global Security deposited with
the Trustee as custodian for the Depository for credit to their respective
accounts (or to such other accounts as they may direct) at Euroclear or
CEDEL, the provisions of the "Operating Procedures of the Euroclear System"
and the "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations" and "Instructions to
-58-
Participants" of CEDEL, respectively, shall be applicable to such Global
Security.
(b) Registration, Registration of Transfer and Exchange and Legends.
---------------------------------------------------------------
The Issuers shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as they may prescribe, the Issuers shall provide for the
registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided. Such
Security Register shall distinguish between Original Securities and Exchange
Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Issuers designated pursuant to Section 1002 for such
purpose in accordance with the terms hereof, the Issuers shall, subject to the
other provisions of this Section 305, execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like tenor and aggregate principal amount and bearing the applicable legends set
forth in Section 202.
Subject to Section 305(c), at the option of the Holder, Securities may
be exchanged for other Securities of any authorized denominations and of a like
tenor and aggregate principal amount and bearing the applicable legends set
forth in Section 202, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Issuers shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuers, evidencing the same
debt, and (subject to the provisions in the Original Securities regarding the
payment of Special Interest) entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuers or the Trustee) be duly
endorsed, or be accom-
-59-
panied by a written instrument of transfer in form satisfactory to the Issuers
and the Security Registrar duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Issuers may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 303, 304, 305, 906 or 1108 or in accordance
with any Offer to Purchase pursuant to Section 1013 or 1016 not involving any
transfer.
The Issuers shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
All Original Securities initially issued hereunder shall, upon
issuance, bear the legend specified in Section 202 to be applied to such a
Security and such required legend shall not be removed unless the Issuers shall
have delivered to the Trustee (and the Securities Registrar, if other than the
Trustee) an Issuers Order which states that the Security may be issued without
such legend thereon. If such legend required for an Original Security has been
removed from a Security as provided above, no other Security issued in exchange
for all or any part of such Security shall bear such legend, unless the Issuers
have reasonable cause to believe that such other Security is a "restricted
security" within the meaning of Rule 144 of the Securities Act and instructs the
Trustee to cause a legend to appear thereon.
(c) Certain Transfers and Exchanges. Upon presentation for transfer
-------------------------------
or exchange of any Security at the office of the Trustee, as Securities
Registrar, located in the Borough of Manhattan, The City of New York,
accompanied by a written instrument of transfer or exchange in the form approved
by the Issuers (it being understood that, until notice to the contrary is given
to holders of Securities, the Issuers shall be deemed to have approved the form
of instrument of transfer or exchange, if any, printed on any Security),
executed by the registered Holder, in person or
-60-
by such Holder's attorney thereunto duly authorized in writing, and upon
compliance with this Section 305, such Security shall be transferred upon the
Security Register, and a new Security shall be authenticated and issued in the
name of the transferee. Notwithstanding any provision to the contrary herein or
in the Securities, transfers of a Global Security, in whole or in part, and
transfers of interests therein of the kind described in this Section 305(c),
shall only be made in accordance with this Section 305(c). Transfers and
exchanges subject to this Section 305(c) shall also be subject to the other
provisions of this Indenture that are not inconsistent with this Section 305(c).
(1) General. A Global Security may not be transferred, in whole or
-------
in part, to any Person other than the Depository or a nominee thereof, and
no such transfer to any such other Person may be registered; provided,
--------
however, that this Clause (1) shall not prohibit any transfer of a Security
-------
that is issued in exchange for a Global Security but is not itself a Global
Security. No transfer of a Security to any Person shall be effective under
this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Clause (1) shall
prohibit or render ineffective any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions of this
Section 305(c).
(2) Temporary Regulation S Global Security. If the holder of a
--------------------------------------
beneficial interest in a Temporary Regulation S Global Security wishes at
any time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in such Temporary Regulation S
Global Security, such transfer may be effected, subject to the rules and
procedures of the Depository, Euroclear and CEDEL, in each case to the
extent applicable and as in effect from time to time (the "Applicable
Procedures"), only in accordance with this Clause (2). Upon delivery
(a) by a beneficial owner of an interest in a Temporary Regulation S Global
Security to Euroclear or CEDEL, as the case may be, of an Owner Securities
Certification, (b) by the transferee of such beneficial interest in the
Temporary Regulation S Global Security to Euroclear or CEDEL, as the case
may be, of a written certification (a "Transferee Securities
Certification") substantially in the form of Annex C hereto and (c) by
Euroclear or CEDEL, as the case may be, to the Trustee, as Security
Registrar, of a Depository Securities
-61-
Certification, the Trustee may direct either Euroclear or CEDEL, as the
case may be, to reflect on its records the transfer of a beneficial
interest in the Temporary Regulation S Global Security from the beneficial
owner providing the Owner Securities Certification to the Person providing
the Transferee Securities Certification.
(3) Restricted Global Security to Temporary Regulation S Global
-----------------------------------------------------------
Security. If the holder of a beneficial interest in the Restricted Global
--------
Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Temporary Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with the
provisions of this Clause (3) and Clause (9) below. Upon receipt by the
Trustee, as Security Registrar, of (A) written instructions given by or on
behalf of the Depository in accordance with the Applicable Procedures
directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Temporary Regulation S
Global Security in a specified principal amount and to cause to be debited
from another specified Agent Member's account a beneficial interest in the
Restricted Global Security in an equal principal amount and (B) a
certificate in substantially the form set forth in Annex D signed by or on
behalf of the holder of such beneficial interest in the Restricted Global
Security, the Trustee, as Security Registrar, shall, subject to Clause (9)
below, reduce the principal amount of the Restricted Global Security, and
increase the principal amount of the Temporary Regulation S Global Security
by such specified principal amount as provided in Section 305(a)(3).
(4) Restricted Global Security to Permanent Regulation S Global
-----------------------------------------------------------
Security. If the holder of a beneficial interest in the Restricted Global
--------
Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Permanent Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Clause
(4). Upon receipt by the Trustee, as Security Registrar, of (A) written
instructions given by or on behalf of the Depository in accordance with the
Applicable Procedures directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in the
Permanent
-62-
Regulation S Global Security in a specified principal amount and to cause
to be debited from another specified Agent Member's account a beneficial
interest in the Restricted Global Security in an equal principal amount and
(B) a certificate in substantially the form set forth in Annex E signed by
or on behalf of the holder of such beneficial interest in the Restricted
Global Security, the Trustee, as Security Registrar, shall reduce the
principal amount of a Restricted Global Security, and increase the
principal amount of the Permanent Regulation S Global Security by such
specified principal amount as provided in Section 305(a)(3).
(5) Temporary Regulation S Global Security or Permanent Regulation S
----------------------------------------------------------------
Global Security to Restricted Global Security. If the holder of a
---------------------------------------------
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security at any time, wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Restricted Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with
this Clause (5) and Clause (9) below; provided, that with respect to any
--------
transfer of a beneficial interest in a Temporary Regulation S Global
Security, the transferor and Euroclear or CEDEL, as the case may be, must
have previously delivered an Owner Securities Certification and a
Depository Securities Certification respectively, with respect to such
beneficial interest. Upon receipt by the Trustee, as Security Registrar,
of (A) written instructions given by or on behalf of the Depository in
accordance with the Applicable Procedures directing the Trustee to credit
or cause to be credited to a specified Agent Member's account a beneficial
interest in the Restricted Global Security in a specified principal amount
and to cause to be debited from another specified Agent Member's account a
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security, as the case may be, in an equal
principal amount and (B) a certificate in substantially the form set forth
in Annex F signed by or on behalf of the holder of such beneficial interest
in the Temporary Regulation S Global Security or the Permanent Regulation S
Global Security, as the case may be, the Trustee, as Security Registrar,
shall, subject to Clause (9) below, reduce the principal amount of such
Temporary Regulation S Global Security or Permanent Regulation S Global
Security, as the case may be, and increase the princi-
-63-
pal amount of the Restricted Global Security by such specified principal
amount as provided in Section 305(a)(3).
(6) Non-Global Restricted Security to Global Security. If the holder
-------------------------------------------------
of a Restricted Security (other than a Global Security) wishes at any time
to transfer all or any portion of such Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, the Temporary Regulation S Global Security or
the Permanent Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Clause
(6) and Clause (9) below. Upon receipt by the Trustee, as Security
Registrar, of (A) such Security and written instructions given by or on
behalf of such Holder as provided in Section 305(b) directing the Trustee
to credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Restricted Global Security, the Temporary
Regulation S Global Security or the Permanent Regulation S Global Security,
as the case may be, in a specified principal amount equal to the principal
amount of the Restricted Security (or portion thereof) to be so
transferred, and (B) an appropriately completed certificate substantially
in the form set forth in Annex G-1 hereto, if the specified account is to
be credited with a beneficial interest in the Restricted Global Security,
or Annex G-2 hereto, if the specified account is to be credited with a
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security, signed by or on behalf of such
Holder, then the Trustee, as Security Registrar, shall, subject to Clause
(9) below, cancel such Restricted Security (and issue a new Security in
respect of any untransferred portion thereof) as provided in Section 305(b)
and increase the principal amount of the Restricted Global Security,
Temporary Regulation S Global Security or Permanent Regulation S Global
Security, as the case may be, by the specified principal amount as provided
in Section 305(a)(3).
(7) Non-Global Permanent Regulation S Security to Restricted Global
---------------------------------------------------------------
Security or Permanent Regulation S Global Security. If the Holder of a
--------------------------------------------------
Permanent Regulation S Security (other than a Global Security) wishes at
any time to transfer all or any portion of such Security to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Restricted Global Security or the Permanent Regulation
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S Global Security, as the case may be, such transfer may be effected only
in accordance with this Clause (7) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
such Security and instructions given by or on behalf of such Holder as
provided in Section 305(b) directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in the
Restricted Global Security or the Permanent Regulation S Global Security,
as the case may be, in a principal amount equal to the principal amount of
the Security (or portion thereof) to be so transferred, and (B) (i) with
respect to a transfer which is to be delivered in the form of a beneficial
interest in the Restricted Global Security, a certificate in substantially
the form set forth in Annex H-1, signed by or on behalf of such Holder, and
(ii) with respect to a transfer which is to be delivered in the form of a
beneficial interest in the Permanent Regulation S Global Security, a
certificate in substantially the form set forth in Annex H-2, signed by or
on behalf of such Holder, then the Trustee, as Security Registrar, shall,
subject to Clause (9) below, cancel such Security (and issue a new Security
in respect of any untransferred portion thereof) as provided in Section
305(b) and increase the principal amount of the Restricted Global Security,
or the Permanent Regulation S Global Security, as the case may be, by the
specified principal as provided in Section 305(a)(3).
(8) Other Exchanges. Securities that are not Global Securities may
---------------
be exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (1) through (7)
above (including the certification requirements intended to insure that
transfers of beneficial interests in a Global Security comply with Rule
144A, Rule 144 or Regulation S, as the case may be) and any Applicable
Procedures, as may be from time to time adopted by the Issuers and the
Trustee.
(9) Interests in Temporary Regulation S Global Security to be Held
--------------------------------------------------------------
Through Euroclear or CEDEL. Until the later of the expiration of the
--------------------------
Restricted Period and the provision of the Owner Securities Certification
and the Depository Securities Certification, beneficial interests in any
Temporary Regulation S Global Security may be held only in or through
accounts maintained at
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the Depository by Euroclear or CEDEL (or by Agent Members acting for the
account thereof).
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.
------------------------------
If any mutilated Security is surrendered to the Trustee, the Issuers
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Issuers and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Issuers or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuers shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuers in the discretion of
the Company may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuers
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Issuers, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest
Rights Preserved.
-----------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest (including Special Interest) on any Security which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall (a) bear interest at the
rate per annum stated in the form of Security included herein (to the extent
that the payment of such interest shall be legally enforceable), and (b)
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Issuers, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Issuers may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Issuers shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Issuers shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Issuers of such
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Special Record Date and, in the name and at the expense of the Issuers,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Issuers may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuers to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Issuers, the Trustee or any agent of the Issuers or the Trustee shall be
affected by notice to the contrary.
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SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer, exchange or pursuant to any Offer to Purchase pursuant to Section 1013
or 1016 shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Issuers may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuers may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of in accordance with its standard procedures or as directed by an
Issuers Order; provided, however, that the Trustee shall not be required to
-------- -------
destroy such Securities.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months, provided, however, that Special Interest on
-------- -------
Original Securities shall be computed on the basis of a 365 or 366 day year, as
the case may be, and the number of days actually elapsed.
SECTION 311. CUSIP Numbers.
-------------
The Issuers shall in issuing the Securities use CUSIP numbers, and
the Trustee shall use the applicable CUSIP number in notices of redemption or
exchange as a convenience to the Holders; provided, that any such notice may
--------
state that no representation is made as to the accuracy of correctness of the
CUSIP number or numbers printed in the notice or on the certificates
representing the Securities and that reliance may be placed only on the other
identification numbers printed on the certificates representing the Securities.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect as to all
outstanding Securities (except as to (i) rights of registration of transfer and
exchange and the Issuers' right of optional redemption, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of holders of Securities to receive payment of principal of and premium,
if any, and interest on the Securities, (iv) rights, obligations and immunities
of the Trustee under this Indenture and (v) rights of the holders of the
Securities as beneficiaries of this Indenture with respect to any property
deposited with the Trustee payable to all or any of them), and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) the Issuers will have paid or caused to be paid the
principal of and premium, if any, and interest on the Securities as
and when the same will have become due and payable; or
(B) all outstanding Securities (except lost, stolen or destroyed
Securities which have been replaced or paid) have been delivered to
the Trustee for cancellation;
and the Issuers, in the case of (A) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal of and premium, if any, and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Issuers have paid or caused to be paid all other sums payable
hereunder by the Issuers;
(3) the Issuers have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each
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stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with; and
(4) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture, (i) the
obligations of the Issuers to the Trustee under Section 607, (ii) substitution
of apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of holders of Securities to receive payment of principal of and premium,
if any, and interest on the Securities, (iv) rights, obligations and immunities
of the Trustee under this Indenture (including, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003), and (v) rights of holders of the Securities as beneficiaries
of this Indenture with respect to any property deposited with the Trustee
payable to all or any of them, shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order,
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rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, as to any Interest Payment Date falling on or
prior to April 15, 1999, and any such failure continued for 30 days as to
any Interest Payment Date thereafter; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security when due; or
(3) default in the payment of principal and interest upon any
Security required to be purchased pursuant to an Offer to Purchase pursuant
to Sections 1013 or 1016 when due and payable; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or
warranty of the Issuers in this Indenture or in any Security (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuers by the Trustee or to the
Issuers and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of Debt by the Company or any Significant Subsidiary of
the Company or under any mortgage(s), indenture(s) or instrument(s) under
which there may be issued or by which there may be secured or evidenced any
Debt of such type by the Company or any such Significant Subsidiary with a
principal amount then outstanding, individually or in the aggregate, in
excess of $10 million, whether such Debt now exists or shall hereafter be
created, which default or defaults shall constitute a failure to pay such
Debt when due at the final maturity thereof, or shall have resulted in such
Debt becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable; or
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(7) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered against the Company or any Significant
Subsidiary in an aggregate amount in excess of $10 million by a court or
courts of competent jurisdiction, which judgments remain undischarged or
unstayed for a period (during which execution shall not be effectively
stayed) of 45 days after the right to appeal all such judgments has
expired; or
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of an Issuer or any Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging an Issuer or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of an Issuer or any Significant Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of an
Issuer or any Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by an Issuer or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of an
Issuer or any Significant Subsidiary in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of an Issuer or any Significant Subsidiary or of any substantial
part of its property, or the making
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by it of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by an Issuer or any Significant
Subsidiary in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9) with respect to the Issuers) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the Default
Amount of all the Securities to be due and payable immediately, by a notice in
writing to the Issuers (and to the Trustee if given by Holders), and upon any
such declaration such Default Amount and any accrued interest, together with all
other amounts due under this Indenture, shall become immediately due and
payable. If an Event of Default specified in Section 501(8) or (9) with respect
to the Issuers occurs, the Default Amount of and any accrued interest on the
Securities then Outstanding, together with all other amounts due under this
Indenture, shall ipso facto become immediately due and payable without any
declaration or other Act on the part of the Trustee or any Holder.
The "Default Amount" in respect of any particular Security as of any
particular date of acceleration shall equal the principal amount of the Security
plus accrued and unpaid interest to such date.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due based on acceleration
has been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Issuers and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Issuers have paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (includ-
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ing any Securities required to have been purchased on the Purchase
Date pursuant to an Offer to Purchase made by the Company) and
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the applicable rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee
------------------------------------
The Issuers covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Issuers will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall
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be sufficient to cover the costs and expenses incurred by the Trustee under this
Indenture, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuers or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuers or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Issuers (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys, securities or other property payable or deliverable upon the
exchange of the Securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept
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or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the Trustee may, on
-------- -------
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors or other similar committee.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities.
----------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
The Trustee, upon prior written notice to the Issuers, may fix a record date and
payment date for any payment to the Holders pursuant to this Section 506.
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SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided
to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer and, if requested, provision of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders
to Receive Principal, Premium
and Interest.
------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to Sec-
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tion 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as
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may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability (as
determined in the sole discretion of the Trustee), and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
The Trustee may refuse, however, to follow any direction that the Trustee, in
its sole discretion, determines may be unduly prejudicial to the rights of
another Holder or that may subject the Trustee to any liability or expense if
the Trustee determines, in its sole discretion, that it lacks indemnification
against such loss or expense.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all the Securities
by written notice to the Trustee waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected or
(3) arising from failure to purchase any Security tendered pursuant
to Sections 1013 and 1016.
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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.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust Indenture Act shall be
--------
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Issuers.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Issuers covenant (to the extent that they may lawfully do so) that
they will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuers (to the extent that they
may lawfully do so) hereby expressly waive all benefit or advantage of any such
law and covenant that they will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of
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its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any Default hereunder as
and to the extent provided by the Trust Indenture Act, unless such Default has
been cured or waived; provided, however, that in the case of any Default of the
-------- -------
character specified in Section 501(5), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuers Request or an Issuers Order and any
resolution of the Managing Member of the Company may be sufficiently
evidenced by a Managing Member's Certificate and any resolution of the
Board of Directors of Capital may be sufficiently evidenced by a Board
Resolution of Capital;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate or an Opinion of
Counsel;
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction reasonably satisfactory to the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Issuers, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith which the Trustee reasonably believed to have
been authorized or within its rights or powers.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
----------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuers, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or
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sufficiency of this Indenture, the Pledge Agreement, the Pledged Securities or
the Securities. The Trustee shall not be accountable for the use or application
by the Issuers of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar (if other than
the Trustee) or any other agent of the Issuers, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Issuers with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuers.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Issuers agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense (including the reasonable compensation,
expenses and disbursements of its agents, accountants, experts and counsel)
incurred without negligence or bad faith on
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its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of enforcing
this Indenture against the Issuers (including, without limitation, this
Section 607) and of defending itself against any claim (whether asserted by
any Holder or the Issuers) or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of
this Section 607 shall survive any termination of this Indenture and the
resignation or removal of the Trustee.
As security for the performance of the obligations of the Issuers
under this Section 607 and the Pledge Agreement, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by the
Trustee, including the Collateral (as defined in the Pledge Agreement), except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of
any amounts due under this Section 607 shall not be subordinate to any other
liability or indebtedness of the Issuers (even though the Securities may be so
subordinated).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(8) or (9) occurs, the expenses and the
compensation for such services are intended to constitute expenses of
administration under Title 11, U.S. Code, or any similar Federal state or
foreign law for the relief of debtors.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York, New York. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State, Territorial or District of
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Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment
of Successor.
------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611, at which
time the retiring Trustee shall be fully discharged from its obligations
hereunder.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuers. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Issuers.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Issuers or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuers or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs
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for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuers by (x) a resolution of the Managing
Member of the Company, which may be sufficiently evidenced by a Managing
Member's Certificate and (y) Board Resolution of Capital, may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuers, by (x) a resolution of the Managing Member of the Company, which may be
sufficiently evidenced by a Managing Member's Certificate and (y) Board
Resolution of Capital, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Issuers and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Issuers. If no successor
Trustee shall have been so appointed by the Issuers or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Issuers shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuers and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become
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vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Issuers or the successor Trustee under Section 607,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Issuers shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
--------
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection
of Claims Against Issuers.
-------------------------
If and when the Trustee shall be or become a creditor of either of the
Issuers (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against such Issuer (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuers and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the
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Issuers. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuers. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Issuers and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in lieu of the Trustee's certificate of authentication,
an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
United States Trust Company of New York,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Signatory
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and the Issuers
SECTION 701. Issuers to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Issuers will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuers of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information;
Communications to Holders.
----------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuers and the Trustee that none of the Issuers, the Trustee or
any agent of any of them shall be held accountable by reason of any disclosure
of information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
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SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. Reports by Issuers.
------------------
The Issuers shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act and in the manner set
forth in Section 1017; provided that any such information, documents or reports
--------
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act ("SEC Reports") shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. In the event the
Issuers shall cease to be required to file SEC Reports pursuant to the Exchange
Act, the Issuers will nonetheless continue to file such reports with the
Commission (unless the Commission will not accept such a filing) and the Trustee
and to furnish copies of such SEC Reports to the Holders of Securities at the
time the Issuers are required to file such reports with the Trustee and will
make such information available to investors who request it in writing.
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates.
----------------------------------
Within five days after any Step-Up, Additional Step-Up or Step-Down
Date, the Issuers shall deliver an Officers' Certificate to the Trustee stating
the new interest rate and the date on which it became effective.
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ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Sales of Assets.
-----------------------------------
(a) The Company may not, in a single transaction or a series of
related transactions, (i) consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Company (other
than a consolidation or merger of a Wholly-Owned Restricted Subsidiary organized
under the laws of a State of the United States into the Company), or (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of all or
substantially all of its assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries taken as a whole and provided that the
creation of a Lien on or in any of its assets shall not in and of itself
constitute the transfer, sale, lease or disposition of the assets subject to the
Lien), unless: (1) in a transaction in which the Company does not survive or in
which the Company sells, leases or otherwise disposes of all or substantially
all of its assets to any other Person, the successor entity to the Company is
organized under the laws of the United States of America or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee in form satisfactory to the Trustee, all
of the Company's obligations under this Indenture; (2) immediately after giving
pro forma effect to such transaction as if such transaction had occurred at the
beginning of the last full fiscal quarter immediately prior to the consummation
of such transaction with the appropriate adjustments with respect to the
transaction being included in such pro forma calculation and treating any Debt
which becomes an obligation of the Company or a Subsidiary as a result of such
transaction as having been Incurred by the Company or such Subsidiary at the
time of the transaction, no Default or Event of Default shall have occurred and
be continuing; (3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company (or other successor entity to the Company)
is equal to or greater than that of the Company immediately prior to the
transaction; (4) if, as a result of any such transaction, property or assets of
the Company would become subject to a Lien prohibited by the provisions of
Section 1011, the Company or the successor entity to the Company shall have
secured the Securities as required by Section 1011; (5) the Issuers have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the Securities will not recognize gain or loss for federal
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income tax purposes as a result of such transaction; and (6) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each in form and substance satisfactory to the Trustee stating that such
consolidation, merger, conveyance, transfer, lease or acquisition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture, complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with, and, with respect to such Officer's Certificate, setting forth the manner
of determination of the Consolidated Net Worth in accordance with Clause (3) of
Section 801, of the Company or, if applicable, of the Successor Company as
required pursuant to the foregoing.
(b) In the event of any transaction (other than a lease) described in
and complying with the immediately preceding paragraph in which the Company is
not the surviving person and the surviving person assumes all the obligations of
the Company under the Securities and this Indenture pursuant to a supplemental
indenture, such surviving person shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, and the Company will be
discharged from its obligations under this Indenture and the Securities;
provided that solely for the purpose of calculating amounts under Section
- --------
1009(3), any such surviving person shall only be deemed to have succeeded to and
be substituted for the Company with respect to the period subsequent to the
effective time of such transaction, and the Company (before giving effect to
such transaction) shall be deemed to be the "Company" for such purposes for all
prior periods.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of either of the Issuers with, or merger of
either of the Issuers with or into, any other Person or any conveyance, transfer
or lease of the properties and assets of either of the Issuers substantially as
an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which either of the Issuers is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, such Issuer under this Indenture with
the same effect as if such successor Person had been named as such Issuer
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.
--------------------------
Without the consent of any Holders, the Issuers, when authorized by
(x) a resolution of the Managing Member of the Company, which may be
sufficiently evidenced by a such Managing Member's Certificate and (y) Board
Resolution of Capital, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to either of the
Issuers and the assumption by any such successor of the covenants of the
Issuers herein and in the Securities; or
(2) to add to the covenants of the Issuers for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Issuers; or
(3) to secure the Securities pursuant to the requirements of Section
1011 or otherwise; or
(4) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to comply with any requirement of the
Commission in order to effect qualification of this Indenture under the
Trust Indenture Act in connection with the issuance of Exchange Securities
or thereafter to maintain the qualification of this Indenture under the
Trust Indenture Act;
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this Clause (5) shall
--------
not adversely affect the legal rights of the Holders; or
(6) to provide for uncertificated Securities in addition to or in
place of certificated Securities.
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SECTION 902. Supplemental Indentures
with Consent of Holders.
-----------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Issuers and the Trustee, and consistent with Section 513, the
Issuers, when authorized by (x) a resolution of the Managing Member of the
Company, which may be sufficiently evidenced by a Managing Member's Certificate
and (y) Board Resolution of Capital, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
- -------- -------
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or 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, on or after the
Redemption Date) or, in the case of an Offer to Purchase which has been
made, on or after the applicable Purchase Date, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1021, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1013 or 1016 and until the Expiration Date of
such Offer to Purchase, modify the provisions of this
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Indenture with respect to such Offer to Purchase in a manner materially
adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities
to Supplemental Indentures.
--------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuers shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Issuers, to any
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such supplemental indenture may be prepared and executed by the Issuers and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest.
---------------------------------
The Issuers will duly and punctually pay the principal of and premium,
if any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture; provided, however, that no payment of principal
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or interest will be made in respect of a Temporary Regulation S Global Note.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Issuers will maintain in the Borough of Manhattan, The City of New
York, New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuers in
respect of the Securities and this Indenture may be served. The Issuers will
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 Issuers 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, and the
Issuers hereby appoint the Trustee as their agent to receive all such
presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York, New York) where the Securities may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
--------
however, that no such designation or rescission shall in any manner relieve the
- -------
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, New York for such purposes. The Issuers will
give prompt written notice to the Trustee
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of any such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 1003. Money for Security
Payments to be Held in Trust.
----------------------------
If the Issuers shall at any time act as their own Paying Agent, they
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act. As provided
in Section 504, upon any bankruptcy or reorganization proceeding relative to the
Issuers, the Trustee shall serve as the Paying Agent for the Securities.
Whenever the Issuers shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Issuers will
promptly notify the Trustee in writing of its action or failure so to act. As
provided in Section 504, upon any bankruptcy or reorganization proceeding
relative to the Issuers the Trustee shall serve as the Paying Agent for the
Securities.
The Issuers will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuers (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and obligations
of such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuers Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuers or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuers or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Issuers on the Issuers Request, or (if then held by the
Issuers) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Issuers for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuers as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Issuers cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, 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 publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.
SECTION 1004. Existence.
---------
Subject to Article Eight, the Issuers will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and
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statutory) and franchises; provided, however, that the Issuers shall not be
-------- -------
required to preserve any such right or franchise if the Managing Member of the
Company or the Board of Directors of Capital, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of that Issuer and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 1005. Maintenance of Properties and Insurance.
---------------------------------------
Each Issuer will cause all properties used or useful in the conduct of
its business, or in the case of the Company, 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 such Issuer 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 an Issuer from
- -------- -------
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined in the good faith judgment of (x) in the case
of the Company, the Managing Member, evidenced by a Managing Member's
Certificate or (y) in the case of Capital, the Board of Directors of Capital
evidenced by a Board Resolution, desirable in the conduct of its business or, in
the case of the Company, the business of any Subsidiary, and not disadvantageous
in any material respect to the Holders.
The Issuers shall, and shall cause the Subsidiaries of the Company to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Issuers to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Issuers will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Issuers or any Subsidiaries of
the Company or upon the income, profits or property of the Issuers or any
Subsidiaries, and (2) all lawful claims for
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labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuers or any Subsidiaries of the Company; provided,
--------
however, that the Issuers 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.
SECTION 1007. Limitation on Consolidated Debt.
-------------------------------
The Company may not, and may not permit any Restricted Subsidiary of
the Company to, Incur any Debt unless either (a) the ratio of (i) the aggregate
consolidated principal amount of Debt of the Company outstanding as of the most
recent available quarterly or annual balance sheet, after giving pro forma
effect to the Incurrence of such Debt and any other Debt Incurred since such
balance sheet date and the receipt and application of the proceeds thereof to
(ii) Consolidated Cash Flow Available for Fixed Charges for the four full fiscal
quarters next preceding the Incurrence of such Debt for which consolidated
financial statements are available, determined on a pro forma basis as if any
such Debt had been Incurred and the proceeds thereof had been applied at the
beginning of such four fiscal quarters, would be less than 5.5 to 1 for such
four-quarter periods ending on or prior to December 31, 1999 and 5.0 to 1 for
such periods ending thereafter, or (b) the Company's Consolidated Capital Ratio
as of the most recent available quarterly or annual balance sheet, after giving
pro forma effect to the Incurrence of such Debt and any other Debt Incurred
since such balance sheet date and the receipt and application of the proceeds
thereof, is less than 2.0 to 1.
Notwithstanding the foregoing limitation, the Company and any
Restricted Subsidiary may Incur the following:
(i) Debt under any one or more Bank Credit Agreements or Vendor
Financing Facilities in an aggregate principal amount at any one time not
to exceed $125 million, and any renewal, extension, refinancing or
refunding thereof in an amount which, together with any principal amount
remaining outstanding or available under all Bank Credit Agreements and
Vendor Financing Facilities of the Company and its Restricted Subsidiaries,
plus the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of any Bank Credit Agreement so
refinanced plus the amount of
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expenses incurred in connection with such refinancing, does not exceed the
aggregate principal amount outstanding or available under all such Bank
Credit Agreements and Vendor Financing Facilities of the Company and its
Restricted Subsidiaries immediately prior to such renewal, extension,
refinancing or refunding;
(ii) Purchase Money Debt Incurred to finance the construction,
acquisition or improvement of Telecommunications Assets, provided that the
--------
net proceeds of such Purchase Money Debt do not exceed 80% of the cost of
construction, acquisition or improvement price of the applicable
Telecommunications Assets;
(iii) Debt owed by the Company to any Wholly-Owned Restricted
Subsidiary of the Company or Debt owed by a Restricted Subsidiary of the
Company to the Company or another Wholly-Owned Restricted Subsidiary of the
Company; provided, however, that upon either (x) the transfer or other
-------- -------
disposition by such Wholly-Owned Restricted Subsidiary or the Company of
any Debt so permitted to a Person other than the Company or another Wholly-
Owned Restricted Subsidiary of the Company or (y) the issuance (other than
directors' qualifying shares), sale, lease, transfer or other disposition
of shares of Capital Stock (including by consolidation or merger) of such
Wholly-Owned Restricted Subsidiary to a Person other than the Company or
another such Wholly-Owned Restricted Subsidiary, the provisions of this
clause (iii) shall no longer be applicable to such Debt and such Debt shall
be deemed to have been Incurred at the time of such transfer or other
disposition;
(iv) Debt Incurred to renew, extend, refinance or refund (each, a
"refinancing") Debt outstanding at the date of this Indenture or Incurred
pursuant to the preceding paragraph or clause (ii) of this paragraph or the
Securities in an aggregate principal amount not to exceed the aggregate
principal amount of and accrued interest on the Debt so refinanced plus the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt so refinanced or the amount
of any premium reasonably determined by the Company as necessary to
accomplish such refinancing by means of a tender offer or privately
negotiated repurchase, plus the amount of expenses of the Company incurred
in connection with such refinancing; provided, however, that Debt the
-------- -------
proceeds of which are used to refinance the Securities or Debt which is
pari passu to the Securities or debt
---- -----
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which is subordinate in right of payment to the Securities shall only be
permitted if (A) in the case of any refinancing of the Securities or Debt
which is pari passu to the Securities, the refinancing Debt is made pari
---- ----- ----
passu to the Securities or subordinated to the Securities, and, in the case
-----
of any refinancing of Debt which is subordinated to the Securities, the
refinancing Debt constitutes Subordinated Debt and (B) in either case, the
refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (x) does not provide for
payments of principal of such Debt at the stated maturity thereof or by way
of a sinking fund applicable thereto or by way of any mandatory redemption,
defeasance, retirement or repurchase thereof by the Company (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon any event of default thereunder), in each
case prior to the time the same are required by the terms of the Debt being
refinanced and (y) does not permit redemption or other retirement
(including pursuant to an offer to purchase made by the Company) of such
debt at the option of the holder thereof prior to the final stated maturity
of the Debt being refinanced, other than a redemption or other retirement
at the option of the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change
substantially similar to the provisions of Section 1016 or which is
pursuant to provisions substantially similar to the provisions of
Section 1013;
(v) Debt consisting of Permitted Interest Rate and Currency
Protection Agreements;
(vi) Debt outstanding under the Securities;
(vii) Subordinated Debt invested by (a) a group of employees of the
Company, which includes the Chief Executive Officer of the Company, who
own, directly or indirectly, through an employee stock ownership plan or
arrangement, shares of the Company's Capital Stock or (b) any other Person
that controls the Company (i) on the Issue Date or (ii) after a Change of
Control, provided that the Company is not in default with respect to its
--------
obligations under Section 1016;
(viii) Debt consisting of performance and other similar bonds and
reimbursement obligations Incurred in the ordinary course of business
securing the
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performance of contractual, franchise or license obligations of the Company
or a Restricted Subsidiary, or in respect of a letter of credit obtained to
secure such performance; and
(ix) Debt not otherwise permitted to be Incurred pursuant to clauses
(i) through (viii) above, which, together with any other outstanding Debt
Incurred pursuant to this clause (ix), has an aggregate principal amount
(or, in the case of Debt issued at a discount, an accreted amount
(determined in accordance with generally accepted accounting principles) at
the time of Incurrence) not in excess of $10 million at any time
outstanding.
For purposes of determining compliance with this Section 1007, in the event
that an item of Debt meets the criteria of more than one of the types of Debt
the Company is permitted to incur pursuant to the foregoing clauses (i) through
(ix), the Company shall have the right, in its sole discretion, to classify such
item of Debt and shall only be required to include the amount and type of such
Debt under the clause permitting the Debt as so classified. For purposes of
determining any particular amount of Debt under such covenant, Guarantees or
Liens with respect to letters of credit supporting Debt otherwise included in
the determination of a particular amount shall not be included.
SECTION 1008. Limitation on Debt and Preferred Stock
of Restricted Subsidiaries.
--------------------------------------
The Company may not permit any Restricted Subsidiary of the Company (other
than a Restricted Subsidiary that has fully and unconditionally Guaranteed the
Securities on an unsubordinated basis) to Incur or suffer to exist any Debt or
issue any Preferred Stock except:
(i) Debt or Preferred Stock outstanding on the date of this
Indenture after giving effect to the application of the proceeds of the
Securities;
(ii) Debt Incurred or Preferred Stock issued to and held by the
Company or a Wholly-Owned Restricted Subsidiary of the Company (provided
that such Debt or Preferred Stock is at all times held by the Company or a
Wholly-Owned Restricted Subsidiary of the Company);
(iii) Debt Incurred or Preferred Stock issued by a Person prior to
the time (A) such Person became a Restricted Subsidiary of the Company,
(B) such Person
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merges into or consolidates with a Restricted Subsidiary of the Company or
(C) another Restricted Subsidiary of the Company merges into or
consolidates with such Person (in a transaction in which such Person
becomes a Restricted Subsidiary of the Company), which Debt or Preferred
Stock was not Incurred or issued in anticipation of such transaction and
was outstanding prior to such transaction;
(iv) Debt consisting of Permitted Interest Rate and Currency
Protection Agreements;
(v) Debt or Preferred Stock of a Joint Venture;
(vi) Debt under any one or more Bank Credit Agreements or Vendor
Financing Facilities (and renewals, extensions, refinancings or refundings
thereof) which is permitted to be outstanding under clause (i) of
Section 1007;
(vii) Debt consisting of Guarantees of the Securities;
(viii) Debt or Preferred Stock which is exchanged for, or the
proceeds of which are used to refinance, refund or redeem, any Debt or
Preferred Stock permitted to be outstanding pursuant to clauses (i) and
(iii) hereof (or any extension or renewal thereof) (for purposes hereof, a
"refinancing"), in an aggregate principal amount, in the case of Debt, or
with an aggregate liquidation preference, in the case of Preferred Stock,
not to exceed the aggregate principal amount of the Debt so refinanced or
the aggregate liquidation preference of the Preferred Stock so refinanced,
plus the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt or Preferred Stock so
refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated repurchase, plus the amount of expenses of
the Company and the Restricted Subsidiary incurred in connection therewith
and provided the Debt or Preferred Stock incurred or issued upon such
refinancing by its terms, or by the terms of any agreement or instrument
pursuant to which such Debt or Preferred Stock is Incurred or issued,
(x) does not provide for payments of principal or liquidation value at the
stated maturity of such Debt or Preferred Stock or by way of a sinking fund
applicable to such Debt or Preferred Stock or by way of any mandatory
redemption, defeasance, retirement or
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repurchase of such Debt or Preferred Stock by the Company or any Restricted
Subsidiary of the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding
any retirement required by virtue of acceleration of such Debt upon an
event of default thereunder), in each case prior to the time the same are
required by the terms of the Debt or Preferred Stock being refinanced and
(y) does not permit redemption or other retirement (including pursuant to
an offer to purchase made by the Company or a Restricted Subsidiary of the
Company) of such Debt or Preferred Stock at the option of the holder
thereof prior to the stated maturity of the Debt or Preferred Stock being
refinanced, other than a redemption or other retirement at the option of
the holder of such Debt or Preferred Stock (including pursuant to an offer
to purchase made by the Company or a Restricted Subsidiary of the Company)
which is conditioned upon the change of control of the Company pursuant to
provisions substantially similar to the provisions of Section 1016 or which
is pursuant to provisions substantially similar to the provisions of
Section 1013, and provided, further, that in the case of any exchange or
-------- -------
redemption of Preferred Stock of a Restricted Subsidiary of the Company,
such Preferred Stock may only be exchanged for or redeemed with Preferred
Stock of such Restricted Subsidiary; and
(ix) Debt not otherwise permitted to be incurred pursuant to clauses
(i) through (viii) above, which, together with any other outstanding Debt
incurred pursuant to this clause (ix), has an aggregate principal amount
(or, in the case of Debt issued at a discount, an accreted amount
(determined in accordance with generally accepted accounting principles) at
the time of Incurrence) not in excess of $10 million at any time
outstanding.
SECTION 1009. Limitation on Restricted Payments.
---------------------------------
The Company (i) may not, directly or indirectly, declare or pay any
dividend, or make any distribution, in respect of its Capital Stock or to the
holders thereof (in their capacity as such), excluding any dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock); (ii) may not, and may not permit
any Restricted Subsidiary to, purchase, redeem, or otherwise
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retire or acquire for value (a) any Capital Stock of the Company or any Related
Person of the Company; or (b) any options, warrants or rights to purchase or
acquire shares of Capital Stock of the Company or any Related Person of the
Company or any securities convertible or exchangeable into shares of Capital
Stock of the Company or any Related Person of the Company; (iii) may not make,
or permit any Restricted Subsidiary to make, any Investment in, or payment on a
Guarantee of any obligation of, any Person, other than the Company or a
Restricted Subsidiary of the Company, except for Permitted Investments; and
(iv) may not, and may not permit any Restricted Subsidiary to, redeem, defease,
repurchase, retire or otherwise acquire or retire for value, prior to any
scheduled maturity, repayment or sinking fund payment, Debt of the Company
which is subordinate in right of payment to the Securities (each of clauses
(i) through (iv) being a "Restricted Payment") if: (1) a Default or an Event
of Default shall have occurred and is continuing; or (2) upon giving effect
to such Restricted Payment, the Company could not Incur at least $1.00 of
additional Debt pursuant to the provisions of the first paragraph of
Section 1007; or (3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the date of this Indenture exceeds
the sum of: (a) 50% of cumulative Consolidated Net Income (or, in the case
Consolidated Net Income shall be negative, less 100% of such deficit) since
the end of the last full fiscal quarter prior to the date of this Indenture
through the last day of the last full fiscal quarter ending immediately
preceding the date of such Restricted Payment; plus (b) $5 million; plus
(c) 100% of the net reduction in Investments in any Unrestricted Subsidiary
resulting from payments of interest on Debt, dividends, repayments of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary of the Company from such Unrestricted Subsidiary (except
to the extent that any such payment is included in the calculation of
Consolidated Net Income) or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries; provided that the amount included in this
--------
clause (c) shall not exceed the amount of Investments previously made by the
Company and its Restricted Subsidiaries in such Unrestricted Subsidiary;
provided, further, that the Company or a Restricted Subsidiary of the Company
- -------- -------
may make any Restricted Payment with the aggregate net proceeds received
after the date of this Indenture, including the fair value of property other
than cash (determined in good faith by the Managing Member, as conclusively
evidenced by a Managing Member's Certificate filed with the Trustee), as
capital contributions to the Company or from the issuance (other than to a
Restricted Subsidiary) of Capital Stock (other than Disqualified Stock)
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of the Company and warrants, rights or options on Capital Stock (other than
Disqualified Stock) of the Company and the principal amount of Debt of the
Company that has been converted into Capital Stock (other than Disqualified
Stock and other than by a Restricted Subsidiary) of the Company after the date
of this Indenture.
Notwithstanding the foregoing, the Company may (i) pay any dividend on
Capital Stock of any class within 60 days after the declaration thereof if, on
the date when the dividend was declared, the Company could have paid such
dividend in accordance with the foregoing provisions; (ii) repurchase any shares
of its Common Equity or options to acquire its Common Equity from Persons who
were formerly officers or employees of the Company, provided that the aggregate
--------
amount of all such repurchases made pursuant to this clause (ii) shall not
exceed $2 million, plus the aggregate cash proceeds received by the Company
since the date of this Indenture from issuances of its Common Equity or options
to acquire its Common Equity to members, officers, managers and employees of the
Company or any of its Subsidiaries; (iii) the Company and its Restricted
Subsidiaries may refinance any Debt otherwise permitted by clause (iv) of the
second paragraph of Section 1007; (iv) so long as no Event of Default shall have
occurred and be continuing, and so long as the Company is treated as a
partnership for U.S. federal income tax purposes, make distributions in respect
of members' or partners' income tax liability in an amount not to exceed the Tax
Amount; and (v) the Company and its Restricted Subsidiaries may retire or
repurchase any Capital Stock of the Company or of any Restricted Subsidiary of
the Company in exchange for, or out of the proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company) of,
Capital Stock (other than Disqualified Stock) of the Company. If the Company
makes a Restricted Payment which, at the time of the making of such Restricted
Payment, would in the good faith determination of the Company be permitted under
this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company financial statements affecting Consolidated Net
Income for any period.
SECTION 1010. Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries.
--------------------------------
The Company may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, create or
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otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary of the
Company (i) to pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the Company or any other
Restricted Subsidiary of the Company or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary; (ii) to make loans or advances
to the Company or any other Restricted Subsidiary; or (iii) to transfer any of
its property or assets to the Company or any other Restricted Subsidiary.
Notwithstanding the foregoing, the Company may, and may permit any Restricted
Subsidiary to, suffer to exist any such encumbrance or restriction (a) pursuant
to any agreement in effect on the Issue Date; (b) pursuant to an agreement
relating to any Acquired Debt, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so acquired and its Subsidiaries; (c) pursuant to any one or more
Bank Credit Agreements or Vendor Financing Facilities (and renewals, extensions,
refinancings or refundings thereof) which is permitted to be outstanding under
clause (i) of Section 1007, provided that such restriction is consistent with,
--------
and not materially more restrictive (as conclusively determined in good faith by
the Chief Financial Officer of the Company), taken as a whole, than, comparable
provisions included in similar agreements or facilities extended to comparable
credits engaged in the Telecommunications Business; (d) pursuant to an
agreement effecting a renewal, refunding or extension of Debt Incurred pursuant
to an agreement referred to in clause (a) or (b) above or (e) below, provided,
--------
however, that the provisions contained in such renewal, refunding or extension
- -------
agreement relating to such encumbrance or restriction are not materially more
restrictive (as conclusively determined in good faith by the Chief Financial
Officer of the Company), taken as a whole, than the provisions contained in the
agreement the subject thereof; (e) in the case of clause (iii) above,
restrictions contained in any security agreement (including a Capital Lease
Obligation) securing Debt of the Company or a Restricted Subsidiary otherwise
permitted under this Indenture, but only to the extent such restrictions
restrict the transfer of the property subject to such security agreement; (f) in
the case of clause (iii) above, customary nonassignment provisions entered into
in the ordinary course of business in leases and other agreements; (g) any
restriction with respect to a Restricted Subsidiary of the Company imposed
pursuant to an agreement which has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided that consummation of such transaction would not result in a
Default or an Event
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of Default, that such restriction terminates if such transaction is not
consummated and that such consummation or abandonment of such transaction occurs
within one year of the date such agreement was entered into; (h) pursuant to
applicable law or regulations; (i) pursuant to this Indenture and the
Securities; or (j) any restriction on the sale or other disposition of assets or
property securing Debt as a result of a Permitted Lien on such assets or
property.
SECTION 1011. Limitation on Liens.
-------------------
The Company may not, and may not permit any Restricted Subsidiary of the
Company to, Incur or suffer to exist any Lien on or with respect to any property
or assets now owned or hereafter acquired to secure any Debt without making, or
causing such Restricted Subsidiary to make, effective provision for securing the
Securities (x) equally and ratably with (or prior to) such Debt as to such
property for so long as such Debt will be so secured or (y) in the event such
Debt is Debt of the Company which is subordinate in right of payment to the
Securities, prior to such Debt as to such property for so long as such Debt will
be so secured.
The foregoing restrictions shall not apply to: (i) Liens existing on the
Issue Date and securing Debt outstanding on the Issue Date or securing the
Securities or Liens securing Debt Incurred pursuant to any Bank Credit Agreement
or Vendor Financing Facility (whether or not such Bank Credit Agreement or
Vendor Financing Facility was outstanding on the Issue Date); (ii) Liens
securing Debt in an amount which, together with the aggregate amount of Debt
then outstanding or available under the Bank Credit Agreement and Vendor
Financing Facility (or under refinancings or amendments of such agreements),
does not exceed 1.5 times the Company's Consolidated Cash Flow Available for
Fixed Charges for the four full fiscal quarters preceding the Incurrence of such
Lien for which consolidated financial statements are available, determined on a
pro forma basis as if such Debt had been Incurred and the proceeds thereof had
been applied at the beginning of such four fiscal quarters; (iii) Liens in favor
of the Company or any Wholly-Owned Restricted Subsidiary of the Company;
(iv) Liens on real or personal property of the Company or a Restricted
Subsidiary of the Company acquired, constructed or constituting improvements
made after the Issue Date to secure Purchase Money Debt which is Incurred for
the construction, acquisition and improvement of Telecommunications Assets and
is otherwise permitted under
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this Indenture, provided, however, that (a) the net proceeds of any Debt secured
-------- -------
by such a Lien does not exceed 100% of such purchase price or cost of
construction or improvement of the property subject to such Lien, (b) such Lien
attaches to such property prior to, at the time of or within 180 days after the
acquisition, completion of construction or commencement of operation of such
property and (c) such Lien does not extend to or cover any property other than
the property (or identifiable portions thereof) acquired, constructed or
constituting the improvements made with the proceeds of such Purchase Money Debt
(it being understood and agreed that all Debt owed to any single lender or group
of lenders or outstanding under any single credit facility shall be considered a
single Purchase Money Debt, whether drawn at one time or from time to time);
(v) Liens to secure Acquired Debt, provided, however, that (a) such Lien
-------- -------
attaches to the acquired asset prior to the time of the acquisition of such
asset and (b) such Lien does not extend to or cover any other asset; (vi) Liens
to secure Debt Incurred to extend, renew, refinance or refund (or successive
extensions, renewals, refinancings or refundings), in whole or in part, Debt
secured by any Lien referred to in the foregoing clauses (i), (ii), (iv) and
(v) so long as such Lien does not extend to any other property and the principal
amount of Debt so secured is not increased except as otherwise permitted under
clause (iv) of Section 1007; (vii) Liens securing Debt not otherwise permitted
by the foregoing clauses (i) through (vi) in an amount not to exceed 5% of the
Company's Consolidated Tangible Assets determined as of the most recent
available quarterly or annual balance sheet; and (viii) Permitted Liens.
SECTION 1012. Limitation on Sale and Leaseback
Transactions.
--------------------------------
The Company may not, and may not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction unless (i) the Company or such
Restricted Subsidiary would be entitled to Incur a Lien to secure Debt by reason
of the provisions of Section 1011, equal in amount to the Attributable Value of
the Sale and Leaseback Transaction without equally and ratably securing the
Securities; or (ii) the Sale and Leaseback Transaction is treated as an Asset
Disposition and all of the conditions of Section 1013 (including the provisions
concerning the application of Net Available Proceeds) are satisfied with respect
to such Sale and Leaseback Transaction, treating all of the consideration
received in such Sale and Leaseback Transaction in the same manner as
consideration in respect of an Asset Disposition for purposes of such covenant.
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SECTION 1013. Limitation on Asset Dispositions.
--------------------------------
(a) The Company may not, and may not permit any Restricted Subsidiary to,
make any Asset Disposition in one or more related transactions occurring within
any 12-month period unless: (i) the Company or the Restricted Subsidiary, as
the case may be, receives consideration for such disposition at least equal to
the fair market value for the assets sold or disposed of as determined by the
Managing Member in good faith and evidenced by a Managing Member's Certificate
filed with the Trustee, which determination shall be conclusive; (ii) at least
75% of the consideration for such disposition consists of (1) cash or readily
marketable cash equivalents or the assumption of Debt of the Company (other than
Debt that is subordinated to the Securities) or of the Restricted Subsidiary and
release from all liability on the Debt assumed; (2) Telecommunications Assets;
or (3) shares of publicly-traded Voting Stock of any Person engaged in the
Telecommunications Business in the United States; and (iii) all Net Available
Proceeds, less any amounts invested within 360 days of such disposition in new
Telecommunications Assets, are applied within 360 days of such disposition
(1) first, to the permanent repayment or reduction of Debt then outstanding
under any Bank Credit Agreement or Vendor Financing Facility, to the extent such
agreements would require such application or prohibit payments pursuant to
clause (2) following, (2) second, to the extent of remaining Net Available
Proceeds, to make an Offer to Purchase outstanding Securities at 100% of their
principal amount plus accrued interest to the date of purchase and, to the
extent required by the terms thereof, any other Debt of the Company that is pari
passu with the Securities at a price no greater than 100% of the principal
amount thereof plus accrued interest to the date of purchase, and (3) third, to
the extent of any remaining Net Available Proceeds following the completion of
the Offer to Purchase, to the repayment of other Debt of the Company or Debt of
a Restricted Subsidiary of the Company, to the extent permitted under the terms
thereof. To the extent any Net Available Proceeds remain after such uses, the
Company and its Restricted Subsidiaries may use such amounts for any purposes
not prohibited by this Indenture.
(b) The Company will mail the Offer for an Offer to Purchase required
pursuant to Section 1013(a) not more than 360 days after consummation of the
disposition referred to in Section 1013(a). The aggregate principal amount of
the Securities to be offered to be purchased pursuant to the Offer to Purchase
shall equal the Net Available Proceeds available therefor pursuant to Clause
(iii)(2) of
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Section 1013(a) (rounded down to the next lowest integral multiple of $1,000).
Each Holder shall be entitled to tender all or any portion of the Securities
owned by such Holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its obligations
under this Section 1013 for the principal amount of any Securities acquired or
redeemed by the Company otherwise than pursuant to the Offer to Purchase
pursuant to this Section 1013.
(c) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1013, the Company shall deliver to the Trustee
an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of
the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made, including, if amounts are invested in Telecommunication
Assets, the amount of the assets acquired and (iii) the compliance of such
allocation with the provisions of Section 1013(a).
The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer,
(ii) deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) money
sufficient to pay the purchase price of all Securities or portions thereof so
accepted and (iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent (or the Company, if so acting) shall promptly mail or deliver to Holders
of Securities so accepted payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and mail or deliver to such Holders a
new Security of like tenor equal in principal amount to any unpurchased portion
of the Security surrendered. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof.
(d) Notwithstanding the foregoing, this Section 1013 shall not apply to
any Asset Disposition which constitutes a transfer, conveyance, sale, lease or
other disposition of all or substantially all of the Company's
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properties or assets within the meaning of Section 801 hereof.
SECTION 1014. Limitation on Issuances and Sales of
Capital Stock of Restricted Subsidiaries.
----------------------------------------
The Company may not, and may not permit any Restricted Subsidiary of
the Company to, issue, transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of a Restricted Subsidiary of the Company or securities
convertible or exchangeable into, or options, warrants, rights or any other
interest with respect to, Capital Stock of a Restricted Subsidiary of the
Company to any person other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company except (i) in a transaction consisting of a sale of
Capital Stock of such Restricted Subsidiary owned by the Company or any
Restricted Subsidiary of the Company and that complies with the provisions of
Section 1013 to the extent such provisions apply; (ii) if required, the
issuance, transfer, conveyance, sale or other disposition of directors'
qualifying shares; (iii) in a transaction in which, or in connection with which,
the Company or a Restricted Subsidiary acquires at the same time sufficient
Capital Stock of such Restricted Subsidiary to at least maintain the same
percentage ownership interest it had prior to such transaction;
(iv) constituting the issuance of Preferred Stock permitted by the provisions
of Section 1008; and (v) Disqualified Stock issued in exchange for, or upon
conversion of, or the proceeds of the issuance of which are used to redeem,
refinance, replace or refund shares of Disqualified Stock of such Restricted
Subsidiary, provided that the amounts of the redemption obligations of such
Disqualified Stock shall not exceed the amounts of the redemption obligations
of, and such Disqualified Stock shall have redemption obligations no earlier
than those required by, the Disqualified Stock being exchanged, converted,
redeemed, refinanced, replaced or refunded.
SECTION 1015. Transactions with Affiliates
and Related Persons.
----------------------------
The Company may not, and may not permit any Restricted Subsidiary of the
Company to, enter into any transaction (or series of related transactions) with
an Affiliate or Related Person of the Company (other than the Company or a
Wholly-Owned Restricted Subsidiary of the Company), including any Investment,
but excluding transactions pursuant to employee compensation arrangements
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approved by the Managing Member of the Company, either directly or indirectly,
unless such transaction is on terms no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable arm's-
length transaction with an entity that is not an Affiliate or Related Person and
is in the best interests of such Company or such Restricted Subsidiary. For any
transaction that involves in excess of $1 million but less than or equal to $5
million, the Chief Executive Officer of the Company shall determine that the
transaction satisfies the above criteria and shall evidence such a determination
by an Officer's Certificate filed with the Trustee. For any transaction that
involves in excess of $5 million, the Company shall also obtain an opinion from
a nationally recognized expert with experience in appraising the terms and
conditions, taken as a whole, of the type of transaction (or series of related
transactions) for which the opinion is required stating that such transaction
(or series of related transactions) is on terms and conditions, taken as a
whole, no less favorable to the Company or such Restricted Subsidiary than those
that could be obtained in a comparable arm's-length transaction with an entity
that is not an Affiliate or Related Person of the Company, which opinion shall
be filed with the Trustee. This covenant shall not apply to Investments by an
Affiliate or a Related Person of the Company in the Capital Stock (other than
Disqualified Stock) of the Company or any Restricted Subsidiary of the Company.
SECTION 1016. Change of Control.
-----------------
(a) Within 30 days of the occurrence of a Change of Control, the Company
will be required to make an Offer to Purchase all Outstanding Securities at a
purchase price equal to 101% of their principal amount plus accrued and unpaid
interest to the date of purchase.
(b) The Company and Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to
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Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof.
(c) A "Change of Control" will be deemed to have occurred at such time as
either (a) any Person or any Persons acting together that would constitute a
"group" (a "Group") for purposes of Section 13(d) of the Exchange Act, or any
successor provision thereto (other than Eagle River, Mr. Craig O. McCaw and
their respective Affiliates or an underwriter engaged in a firm commitment
underwriting on behalf of the Company), shall beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act, or any successor provision
thereto) more than 50% of the aggregate voting power of all classes of Voting
Stock of the Company; or (b) neither Eagle River nor any Affiliate of Mr. Craig
O. McCaw or Eagle River shall be a Managing Member of the Company.
(d) In the event that the Company makes an Offer to Purchase the
Securities, the Company intends to comply with any applicable securities laws
and regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act.
(e) Unless the Company defaults in the payment of the Purchase Price, any
Security accepted for payment pursuant to an Offer to Purchase shall cease to
accrue interest after the Purchase Date.
SECTION 1017. Provision of Financial Information.
----------------------------------
The Company has agreed that, for so long as any Securities remain
outstanding, it will furnish to the Holders of the Securities 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. In
addition, prior to the effectiveness of the Exchange Offer Registration
Statement, the Company will file with the Trustee and furnish to the holders of
the Securities the quarterly and annual financial statements and related notes
and an accompanying Management's Discussion and Analysis of Financial Condition
and Results of Operations in the format that would be required to be included in
the Company's periodic reports filed with the
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Commission if the Company were required to file such reports with the
Commission. The Company will furnish such information to the Trustee and the
holders of the Securities within 15 days after the date on which the Company
would have been required to file the same with the Commission. Following the
effectiveness of the Exchange Offer Registration Statement (or earlier if the
Company becomes obligated to file reports with the Commission), the Company will
file with the Trustee within 15 days after it files them with the Commission
copies of the annual and quarterly reports and the information, documents, and
other reports that the Company is required to file with the Commission pursuant
to section 13(a) or 15(d) of the Exchange Act ("SEC Reports"). In the event the
Company shall cease to be required to file SEC Reports pursuant to the Exchange
Act, the Company will nevertheless continue to file such reports with the
Commission (unless the Commission will not accept such a filing) and the
Trustee. The Company will furnish copies of the SEC Reports to the Holders of
Securities at the time the Company is required to file the same with the Trustee
and will make such information available to investors who request it in writing.
The Company shall not be required to furnish information pursuant to this
Section 1013 at any time to a prospective purchaser located outside the United
States who is not a "U.S. Person" within the meaning of Regulation S if such
Security may then be sold to such prospective purchaser in accordance with
Rule 904 under the Securities Act (or any successive provision thereto).
SECTION 1018. Limitations on Conduct of Business of Capital
---------------------------------------------
Capital will not hold any operating assets or other properties or conduct
any business other than to serve as an Issuer and co-obligor with respect to the
Securities and will not own any Capital Stock of any Person to the extent that
such ownership would cause such Person to be deemed a Subsidiary of Capital.
SECTION 1019. Pledge Agreement; Security
--------------------------
(a) The Company shall (i) enter into the Pledge Agreement (in the form
attached hereto as Exhibit I) and comply with the terms and provisions thereof
and (ii) use a portion of the net proceeds of the sale of the Securities to the
Initial Purchasers to purchase the Pledged Securities to be pledged to the
Trustee for the benefit of the Holders of the Securities in such amount as will
be sufficient upon receipt of scheduled interest and principal payments of such
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securities, in the opinion of a nationally recognized firm of independent public
accountants selected by the Company, to provide for payment in full of the first
six scheduled interest payments due on the Securities. The Pledged Securities
shall be pledged by the Company to the Trustee for the benefit of the Holders of
the Securities and shall be held by the Trustee in the Pledge Account pending
disbursement pursuant to the Pledge Agreement.
(b) Each Holder, by its acceptance of a Security, consents and agrees to
the terms of the Pledge Agreement (including, without limitation, the provisions
providing for foreclosure and release of Collateral (as defined in the Pledge
Agreement)) as the same may be in effect or may be amended from time to time in
accordance with its terms, and authorizes and directs the Trustee to enter into
the Pledge Agreement to which it is a party and to perform its respective
obligations and exercise its respective rights thereunder in accordance
therewith. The Company will do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Pledge Agreement, to assure and confirm to the Trustee the security interest in
the Collateral (as defined in the Pledge Agreement) contemplated hereby, by the
Pledge Agreement or any part thereof, as from time to time constituted, so as to
render the same available for the security and benefit of this Indenture and of
the Securities secured hereby, according to the intent and purposes herein
expressed. The Company shall take, or shall cause to be taken, upon request of
the Trustee, any and all actions reasonably required to cause the Pledge
Agreement to create and maintain, as security for the obligations of the Company
under this Indenture and the Securities, valid and enforceable first priority
liens in and on all the Collateral, in favor of the Trustee, superior to and
prior to the rights of all third Persons and subject to no other Liens other
than as provided herein.
(c) The release of any Collateral pursuant to the Pledge Agreement will
not be deemed to impair the security under this Indenture in contravention of
the provisions hereof if and to the extent the Collateral is released pursuant
to this Indenture and the Pledge Agreement. To the extent applicable, the
Company shall cause Section 314(d) of the Trust Indenture Act relating to the
release of property or securities from the Lien and security interest of the
Pledge Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion required by
Section 314(d) of the Trust Indenture Act may be made by an officer of the
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Company, except in cases where Section 314(d) of the Trust Indenture Act
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee in the exercise of reasonable care.
(d) The Company shall cause Section 314(b) of the Trust Indenture Act,
relating to opinions of counsel regarding the Lien of the Pledge Agreement, to
be complied with. The Company shall furnish to the Trustee prior to each
proposed release of Collateral pursuant to the Pledge Agreement all documents
required by section 314(d) of the Trust Indenture Act. The Trustee may, to the
extent permitted by Sections 601 and 603 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained
in such instruments.
(e) The Trustee may, in its sole discretion and without the consent of the
Holders, on behalf of the Holders, take all actions it deems necessary or
appropriate in order to (i) enforce any of the terms of the Pledge Agreement and
(ii) collect and receive any and all amounts payable in respect of the
obligations of the Company hereunder. The Trustee shall have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts that may be unlawful or in
violation of the Pledge Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or of the
Trustee).
SECTION 1020. Statement by Officers as to Default.
-----------------------------------
(a) The Issuers will deliver to the Trustee, within 90 days after the end
of each quarter of each fiscal year of the Issuers ending after the date hereof,
an Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Issuers are in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture and if an Issuer
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shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
(b) The Issuers shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Issuers become aware of the occurrence of a
Default or an Event of Default, an Officers' Certificate setting forth the
details of such Default or Event of Default and the action which the Issuers
propose to take with respect thereto.
SECTION 1021. Waiver of Certain Covenants.
---------------------------
The Issuers may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004 to 1017, inclusive, if before or after
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuers and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
(a) The Securities may be redeemed prior to April 15, 2001 only in the
event that on or before April 15, 1999 the Company receives net proceeds from
any sale of its Common Equity, in which case the Company may, at its option, use
all or a portion of any such net proceeds to redeem Securities in a principal
amount of up to an aggregate amount equal to 33 1/3% of the original principal
amount of the Securities provided, however, that Securities in an amount equal
-------- -------
to at least $175 million remain outstanding after such redemption. Such
redemption must occur on a Redemption Date within 90 days of any such sale and
upon not less than 30 nor more than 60 days' notice by mail to each Holder of
Securities to be redeemed at such Holder's address appearing in the Security
Register, in amounts of $1,000 or an integral multiple of $1,000 at a Redemption
Price of 112.50% of their principal amount plus accrued and unpaid
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interest, if any, to but excluding the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive Special
Interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
(b) The Securities further may be redeemed, as a whole or in part, at the
election of the Company, at any time on or after April 15, 2001 and prior to
maturity, upon not less than 30 nor more than 60 days' notice by mail to each
Holder of Securities to be redeemed at such Holder's address appearing in the
Security Register, in amounts of $1,000 or an integral multiple of $1,000, at
the Redemption Prices specified in the form of Security hereinbefore set forth,
together with accrued and unpaid interest (including Special Interest) to, but
excluding, the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest (including Special Interest)
due on an Interest Payment Date that is on or prior to the Redemption Date).
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Issuers, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Issuers to redeem any Securities pursuant to Section
1101 shall be evidenced by a Managing Member's Certificate and a Board
Resolution of Capital. In case of any redemption at the election of the Issuers
of less than all the Securities, the Issuers shall, at least 60 days prior to
the Redemption Date fixed by the Issuers (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Issuers shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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SECTION 1104. Securities to Be Redeemed Pro Rata.
----------------------------------
If less than all the Securities are to be redeemed in any redemption, the
Securities to be redeemed shall be selected by the Trustee by prorating, as
nearly as may be practicable, the principal amount of Securities to be redeemed.
In any proration pursuant to this Section, the Trustee shall make such
adjustments, reallocations and eliminations as it shall deem proper (and in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed) to the end that the principal amount
of Securities so prorated shall be $1,000 or a multiple thereof, by increasing
or decreasing or eliminating the amount which would be allocable to any Holder
on the basis of exact proportion by an amount not exceeding $1,000. The Trustee
in its discretion may determine the particular Securities (if there are more
than one) registered in the name of any Holder which are to be redeemed, in
whole or in part.
The Trustee shall promptly notify the Issuers and each Security Registrar
(other than the Trustee) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section 1101(a)
or (b) and, if being made pursuant to Section 1101(a), a brief statement
setting forth the
-123-
Issuers' right to effect such redemption and the Issuers' basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(7) that in the case that a Security is only redeemed in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities in an aggregate amount equal to the unredeemed portion of the
Security,
(8) the aggregate principal amount of Securities being redeemed, and
(9) the CUSIP number or numbers of the Securities being redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Issuers shall be given by the Issuers or, if request is made to the Trustee no
less than 35 days prior to the Redemption Date, by the Trustee in the name and
at the expense of the Issuers.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Issuers shall deposit with the Trustee or
with a Paying Agent (or, if the Issuers are acting as their own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued and unpaid interest on, all the
Securities which are to be redeemed on that date.
-124-
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuers shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Issuers at the Redemption Price, together with
accrued and unpaid interest to the Redemption Date; provided, however, that
-------- -------
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Issuers designated for that purpose pursuant to
Section 1002 (with, if the Issuers or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuers and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Issuers shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
-125-
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Issuers' Option to Effect Defeasance or
Covenant Defeasance.
---------------------------------------
The Issuers may at their option by, in the case of the Company, resolution
of the Managing Member of the Company, as evidenced by a Managing Member's
Certificate and, in the case of Capital, by Board Resolution of Capital, at any
time (subject to 10-day prior written notification to the Trustee), elect to
have either Section 1202 or Section 1203 applied to the Outstanding Securities
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
------------------------
Upon the Issuers' exercise of the option provided in Section 1201
applicable to this Section, the Issuers shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Issuers shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Issuers, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Issuers' obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Twelve. Subject to compliance with this
Article Twelve, the Issuers may exercise their option under this Section 1202
notwithstanding the prior exercise of their option under Section 1203.
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SECTION 1203. Covenant Defeasance.
-------------------
Upon the Issuers' exercise of the option provided in Section 1201
applicable to this Section (i) the Issuers shall be released from their
obligations under Sections 1005 through 1017, inclusive, and Clauses (3) and (4)
of Section 801, (ii) the occurrence of an event specified in Sections 501(3),
501(4) (with respect to Clauses (3) and (4) of Section 801), and 501 (5) (with
respect to Sections 1005 through 1017, inclusive) shall not be deemed to be an
Event of Default, on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that the Issuers may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance.
---------------------------
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee to pay and discharge, the principal of, premium, if any, and
each installment of interest on the Securities on the Stated Maturity of
such principal or installment of interest on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of
such
-127-
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depositary receipt, provided that (except as required by
--------
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(8)
and (9) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 608 and for purposes
of the Trust Indenture Act with respect to any securities of the Issuers.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which either Issuer is a party or by
which it is bound.
(5) The Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under
-128-
Section 1202 or the covenant defeasance under Section 1203 (as the case may
be) have been complied with.
(6) In the case of an election under Section 1202, the Issuers shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuers have received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred.
(7) In the case of an election under Section 1203, the Issuers shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(8) The Issuers shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit and defeasance or covenant
defeasance shall not result in the trust arising from such deposit
constituting an investment company as defined in the Investment Company Act
of 1940, as amended, or such trust shall be qualified under such act or
exempt from regulation thereunder.
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
-----------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Securities shall be held in trust and
-129-
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Issuers shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 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 Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon Issuers
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized accounting firm
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 and 1203;
provided, however, that if the Issuers make any payment of principal of (and
- -------- -------
premium, if any) any Security following the reinstatement of its obligations,
the Issuers shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
SECTION 1207. Repayment to Company
--------------------
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment
-130-
of the principal of, premium, if any, or interest on any Security and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Company on its written request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such security shall thereafter, as a 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.
--------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-131-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, and the Trustee has caused its seal to be
hereunto affixed and attested, all as of the day and year first above written.
NEXTLINK COMMUNICATIONS, L.L.C.
By: NEXTLINK, INC.
By /s/ R. Bruce Easter, Jr.
----------------------------
Name: R. Bruce Easter, Jr.
Title: Vice President and
Secretary
Attest:
/s/ Gary A. Rawding
- -------------------
By Gary A. Rawding
Vice President
NEXTLINK CAPITAL, INC.
By /s/ R. Bruce Easter, Jr.
-------------------------
Name: R. Bruce Easter, Jr.
Title: Vice President and
Secretary
Attest:
/s/ Gary A. Rawding
- -------------------
By Gary A. Rawding
Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK
By /s/ Patricia Stermer
-------------------------
Name: Patricia Stermer
Title: Assistant Vice President
Attest:
/s/ Cynthia Chaney
- ------------------
By Cynthia Chaney
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On this twenty-fifth day of April, 1996, before me personally appeared
R. Bruce Easter, to me known, who, being duly sworn, did depose and say that he
is the Vice President of NEXTLINK, Inc., a Managing Member of NEXTLINK
Communications, L.L.C., one of the limited liability companies described in and
which executed the foregoing instrument, and duly acknowledged to me that he
executed the same by authority of the Managing Members of said limited liability
company.
______________________________
Notary Public
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On this twenty-fifth day of April, 1996, before me personally appeared
R. Bruce Easter, to me known, who, being duly sworn, did depose and say that he
is the Vice President of NEXTLINK Capital, Inc., one of the corporations
described in and which executed the foregoing instrument, and duly acknowledged
to me that he executed the same by authority of the Board of Directors of said
corporation.
_______________________________
Notary Public
ANNEX A
[FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY
REGULATION S GLOBAL SECURITY
TO EUROCLEAR OR CEDEL]
OWNER SECURITIES CERTIFICATION
NEXTLINK COMMUNICATIONS, L.L.C.
NEXTLINK CAPITAL, INC.
12 1/2% Senior Notes due April 15, 2006
CUSIP No. _____
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This is to certify that, as of the date hereof, $________ of the
above-captioned Securities (the "Securities") are beneficially owned by non-U.S.
person(s). As used in this paragraph, the term "U.S. person" has the meaning
given to it by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers and the Initial Purchasers.
Dated:______________, ____
By:____________________________________________
As, or as agent for, the beneficial
owner(s) of the Securities to which this
certificate relates.
A-1
ANNEX B
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR
CEDEL BANK, SOCIETE ANONYME]
DEPOSITORY SECURITIES CERTIFICATION
NEXTLINK COMMUNICATIONS, L.L.C.
NEXTLINK CAPITAL, INC.
12 1/2% Senior Notes due April 15, 2006
CUSIP No. _____
Reference is hereby made to the Indenture, dated as of April 25, 1996 (the
"Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This is to certify that, with respect to U.S.$___________ principal amount of
the above-captioned Securities (the "Securities"), except as set forth below, we
have received in writing, by tested telex or by electronic transmission, from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Securities (our "Member Organizations"),
certifications with respect to such portion, substantially to the effect set
forth in the Indenture./1/
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Regulation S Global Security (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal
____________________
/1/ Unless Morgan Guaranty Trust Company of New York, London Branch is
otherwise informed by the Agent, the long form certificate set out in the
Operating Procedures will be deemed to meet the requirements of this
sentence.
B-1
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuers and the Initial Purchasers.
Dated: _____________, _______
Yours faithfully,
[CHEMICAL BANK, as operator of the
Euroclear System]
or
[CEDEL BANK, SOCIETE ANONYME]
By______________________________
B-2
ANNEX C
[FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY]
TRANSFEREE SECURITIES CERTIFICATION
NEXTLINK COMMUNICATIONS, L.L.C.
NEXTLINK CAPITAL, INC.
12 1/2% Senior Notes due April 15, 2006
CUSIP No. _____
Reference is hereby made to the Indenture, dated as of April 25, 1996 (the
"Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary Regulation S
Global Security, the undersigned certifies that it is not a U.S. Person as
defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you in which we intend to acquire a beneficial interest in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuers and the Initial Purchasers.
Dated:______________, ____
By:_____________________________
As, or as agent for, the
beneficial acquiror of the
Securities to which this
certificate relates.
C-1
ANNEX D
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY
TO TEMPORARY REGULATION S GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 305(c)(3) of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and
NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S.$___________ aggregate principal amount of
Securities which are held in the form of the Restricted Global Security (CUSIP
No. _________) with the Depository in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person who will take delivery thereof in the
form of an equal aggregate principal amount of Securities evidenced by the
Temporary Regulation S Global Security (CUSIP No. _________) to be held with the
Depository in the name of [Euroclear] [Cedel Bank, societe anonyme].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby certify that:
(1) the offer of the Securities was not made to a person in the
United States;
[(2) at the time the buy order was originated, the transferee was
outside the United States or the
D-1
Transferor and any person acting on its behalf reasonably believed that the
transferee was outside the United States;]/1/
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on our behalf knows that the transaction was pre-arranged
with a buyer in the United States;]/1/
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depository in the
name of [Euroclear] [Cedel Bank, societe anonyme].
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers and the Initial Purchasers.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated: ______________
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
- --------------------
/1/ Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
D-2
ANNEX E
FORM OF CERTIFICATION FOR TRANSFER OR EXCHANGE OF
RESTRICTED GLOBAL SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 305(c)(4) of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S.$___________ aggregate principal amount of
Securities which are held in the form of the Restricted Global Securities (CUSIP
No. _________) with the Depository in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person who will take delivery thereof in the
form of an equal aggregate principal amount of Securities evidenced by the
Permanent Regulation S Global Security (CUSIP No. _________).
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Securities and,
(1) with respect to transfers made in reliance on Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), the Transferor does
hereby certify that:
(A) the offer of the Securities was not made to a person in the United
States;
[(B) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably
E-1
believed that the transferee was outside the United States;]/1/
[(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on our behalf knows that the transaction was pre-arranged
with a buyer in the United States;]/1/
(C) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or
(2) with respect to transfers made in reliance on Rule 144 under the Securities
Act, the Transferor does hereby certify that the Securities are being
transferred in a transaction permitted by Rule 144 under the Securities Act.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers and the Initial Purchasers.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated: ______________
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
____________________
/1/ Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
E-2
ANNEX F
FORM OF CERTIFICATION FOR TRANSFER OR EXCHANGE OF
TEMPORARY REGULATION S GLOBAL SECURITY
OR PERMANENT REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 305(c)(5) of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $___________ principal amount of
Securities which are evidenced by an aggregate [Temporary Regulation S Global
Security (CUSIP No. _________)] [Permanent Regulation S Global Security (CUSIP
No. _________)] and held with the Depository through [Euroclear] [Cedel] (Common
Code _______) in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in
Securities to a person that will take delivery thereof in the form of an equal
principal amount of Securities evidenced by a Restricted Global Security of the
same series and of like tenor as the Securities (CUSIP No. _________).
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such transfer is being effected pursuant
to and in accordance with Rule 144A under the Securities Act and, accordingly,
the Transferor does hereby further certify that the Securities are being
transferred to a person that the Transferor reasonably believes is purchasing
the Securities for its own account, or for one or more accounts with respect to
which such person exercises sole investment discretion, and such person and each
F-1
such account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers and the Initial Purchasers.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated: ______________
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
F-2
ANNEX G-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers and exchanges pursuant to Section 305(c)(6)
of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and
NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Restricted
Securities held in definitive form (CUSIP No. _____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A or Rule 144 under the
United States Securities Act of 1933, as amended (the "Securities Act") and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 144A:
(A) the Securities are being transferred to a person that the
Transferor reasonably believes is
G-1-1
purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion;
(B) such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A; and
(C) the Securities have been transferred in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers and the Initial Purchasers.
Dated: ______________, ____
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
G-1-2
ANNEX G-2
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
OR TEMPORARY REGULATION S GLOBAL SECURITY
(Transfers and exchanges pursuant to Section 305(c)(6)
of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and
NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Restricted
Securities held in definitive form (CUSIP No. _____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in the
United States;
(B) either:
G-2-1
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(C) no directed selling efforts have been made in contravention
of the requirements of Rule 903 (b) or 904(b) of Regulation S, as
applicable;
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Act; and
(E) if such transfer is to occur during the Restricted Period,
upon completion of the transaction, the beneficial interest being
transferred as described above was held with the Depository through
[Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
G-2-2
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuers and the Initial Purchasers.
Dated: ______________, ____
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
G-2-3
ANNEX H-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO RESTRICTED GLOBAL SECURITY
(Transfers and exchanges pursuant to Section 305(c)(7)
of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and
NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Restricted
Securities held in definitive form (CUSIP No. ____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended, and accordingly the Transferor does
hereby further certify that the Securities are being transferred to a person
that the Transferor reasonably believes is purchasing the Securities for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested
H-1-1
party in such proceeding. This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuers and the Initial
Purchasers.
Dated: ________________, ____
[Insert Name of Transferor]
By:___________________________
Name:
Title:
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
H-1-2
ANNEX H-2
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO PERMANENT REGULATION S GLOBAL SECURITY
(Transfers and exchanges pursuant to Section 305(c)(7)
of the Indenture)
United States Trust Company of New York,
as Trustee
114 West 47th Street,
New York, New York 10036.
Attention: Ms. Patricia Stermer
Re: NEXTLINK Communications, L.L.C. and
NEXTLINK Capital, INC.
12 1/2% Senior Notes
Due April 15, 2006 (the "Securities")
-------------------------------------
Reference is hereby made to the Indenture, dated as of April 25, 1996
(the "Indenture"), between NEXTLINK Communications, L.L.C. and NEXTLINK Capital,
Inc., as Issuers, and United States Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Restricted
Securities held in definitive form (CUSIP No. ____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 903 or Rule 904 under
the Securities Act of 1933, as amended (the "Act"), or (b) Rule 144 under the
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in the
United States;
(B) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States, or
H-2-1
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(C) no directed selling efforts have been made in contravention
of the requirements of Rule 903 (b) or 904(b) of Regulation S, as
applicable;
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Act; and
(E) if such transfer is to occur during the Restricted Period,
upon completion of the transaction, the beneficial interest being
transferred as described above was held with the Depository through
[Euroclear] [CEDEL]; or
(2) if the transfer has been effected pursuant to Rule 144:
(A) more than two years has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers and the Initial Purchasers.
Dated: ________________, ____
[Insert Name of Transferor]
By:___________________________
Name:
Title:
cc: NEXTLINK Communications, L.L.C. and NEXTLINK Capital, Inc.
H-2-2
ANNEX I
[FORM OF PLEDGE AGREEMENT]
I-1