<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 28, 2000
GLOBIX CORPORATION
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(Exact name of registrant as specified in charter)
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Delaware 0-25615 13-3781263
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(State or other juris- (Commission (IRS Employer
diction of Incorporation) File number) Identification No.)
139 Centre Street, New York, New York 10013
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code (212) 334-8500
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
Sale of 12.5% Senior Notes due 2010
On January 28, 2000, Globix Corporation (the "Company") entered into a
Purchase Agreement to privately place $600,000,000 of its 12.5% Senior Notes due
2010 (the "Notes").
The Notes are senior unsecured obligations of the Company and mature on
February 1, 2010. Interest on the Notes is payable semi-annually in arrears on
February 1 and August 1 of each year commencing August 1, 2000.
The Notes have not been registered under the Securities Act of 1933, as
amended, or any state securities laws, and unless so registered, may not be
offered or sold in the United States except on the PORTAL system or pursuant to
an exemption from the registration requirements of the Securities Act and
applicable state securities laws. However, in relation to the sale of the Notes,
the Company has entered into a Registration Rights Agreement providing for the
exchange of the Notes for registered notes or for the registration of the Notes.
The Company intends to use the net proceeds of the offering of the
Notes to purchase any and all of its 13% Senior Notes due 2005 (the "2005
Notes"), to further expand its data centers and network infrastructure and for
general corporate purposes.
On February 8, 2000, the Company closed the offering of the Notes.
Tender for 13% Senior Notes due 2005
On February 8, 2000, the Company commenced a tender offer (the "Tender
Offer") to purchase any and all of its 2005 Notes. The purchase price per $1,000
principal amount of the 2005 Notes will be $1,065 plus accrued and unpaid
interest from November 1, 1999. Prior to and in contemplation of the Tender
Offer, the Company solicited and received sufficient consents from the holders
of the 2005 Notes to amend the indenture governing the 2005 Notes to delete
substantially all of its restrictive covenants. The Supplemental Indenture
governing the 2005 Notes became effective on February 4, 2000.
The foregoing summaries of the transactions are qualified in their
entirety by reference to the full text of the exhibits filed with this Report.
This Report contains forward-looking statements. Actual results could
differ materially from those projected in the forward-looking statements.
Additional information concerning factors that could cause actual results to
differ materially from those in the forward-looking statements is contained
under the heading of Risk Factors listed from time to time in the Company's
filings with the Securities and Exchange Commission.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
4.1 Indenture between the Company and HSBC Bank USA, as Trustee,
dated as of February 8, 2000.
4.2 Form of 12.5% Senior Note due February 1, 2010.
4.3 Registration Rights Agreement for 12.5% Senior Notes, dated as
of February 8, 2000.
4.4 Supplemental Indenture to Indenture dated April 30, 1998,
between the Company and HSBC Bank USA, dated as of February 4,
2000.
4.5 Offer to Purchase 13% Senior Notes due 2005, dated February 8,
2000.
10.1 Purchase Agreement for 12.5% Senior Notes, dated January 28,
2000.
20.1 Press Release of the Company dated January 28, 2000.
20.2 Press Release of the Company dated February 7, 2000.
20.3 Press Release of the Company dated February 8, 2000.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
GLOBIX CORPORATION
By: /s/ Marc H. Bell
---------------------------------
Marc H. Bell, Chairman, President
and Chief Executive Officer
Dated: February 14, 2000
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
<S> <C>
4.1 Indenture between the Company and HSBC Bank USA, as Trustee,
dated as of February 8, 2000.
4.2 Form of 12.5% Senior Note due February 1, 2010.
4.3 Registration Rights Agreement for 12.5% Senior Notes, dated as
of February 8, 2000.
4.4 Supplemental Indenture to Indenture dated April 30, 1998,
between the Company and HSBC Bank USA, dated as of February 4,
2000.
4.5 Offer to Purchase 13% Senior Notes due 2005, dated February 8,
2000.
10.1 Purchase Agreement for 12.5% Senior Notes, dated January 28,
2000.
20.1 Press Release of the Company dated January 28, 2000.
20.2 Press Release of the Company dated February 7, 2000.
20.3 Press Release of the Company dated February 8, 2000.
</TABLE>
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Exhibit 4.1
GLOBIX CORPORATION,
AS ISSUER
HSBC BANK USA,
AS TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 8, 2000
12.50% SENIOR NOTES DUE 2010
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TABLE OF CONTENTS
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RECITALS OF THE ISSUER .................................................... 1
ARTICLE ONE Definitions and Other Provisions of General Application ....... 1
SECTION 101. Definitions ............................................................... 1
SECTION 102. Compliance Certificates and Opinions ...................................... 31
SECTION 103. Form of Documents Delivered to Trustee .................................... 32
SECTION 104. Acts of Holders; Record Date .............................................. 32
SECTION 105. Notices, Etc., to Trustee and Issuer ...................................... 35
SECTION 106. Notice to Holders; Waiver ................................................. 36
SECTION 107. Conflict with Trust Indenture Act ......................................... 36
SECTION 108. Effect of Headings and Table of Contents .................................. 37
SECTION 109. Successors and Assigns .................................................... 37
SECTION 110. Separability Clause ....................................................... 37
SECTION 111. Benefits of Indenture ..................................................... 37
SECTION 112. Governing Law ............................................................. 37
SECTION 113. Legal Holidays ............................................................ 37
ARTICLE TWO Security Forms ................................................ 38
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S Securities ... 38
SECTION 202. Form of Face of Security .................................................. 39
SECTION 203. Form of Reverse of Security ............................................... 44
SECTION 204. Form of Trustee's Certificate of Authentication ........................... 49
ARTICLE THREE The Securities .............................................. 50
SECTION 301. Title and Terms ........................................................... 50
SECTION 302. Denominations ............................................................. 51
SECTION 303. Execution, Authentication, Delivery and Dating ............................ 51
SECTION 304. Temporary Securities ...................................................... 53
SECTION 305. Global Securities ......................................................... 53
SECTION 306. Registration, Registration of Transfer and Exchange Generally; Restrictions
on Transfer and Exchange; Securities Act Legends .......................... 55
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities .......................... 60
SECTION 308. Payment of Interest; Interest Rights Preserved ............................ 61
</TABLE>
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SECTION 309. Persons Deemed Owners ..................................................... 63
SECTION 310. Cancellation .............................................................. 63
SECTION 311. CUSIP Numbers ............................................................. 64
SECTION 312. Computation of Interest ................................................... 64
ARTICLE FOUR Satisfaction and Discharge ................................... 64
SECTION 401. Satisfaction and Discharge of Indenture ................................... 64
SECTION 402. Application of Trust Money ................................................ 66
ARTICLE FIVE Remedies ..................................................... 66
SECTION 501. Events of Default ......................................................... 66
SECTION 502. Acceleration of Maturity; Rescission and Annulment ........................ 68
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee ........... 70
SECTION 504. Trustee May File Proofs of Claim .......................................... 71
SECTION 505. Trustee May Enforce Claims Without Possession of Securities ............... 71
SECTION 506. Application of Money Collected ............................................ 71
SECTION 507. Limitation on Suits ....................................................... 72
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . 73
SECTION 509. Restoration of Rights and Remedies ........................................ 73
SECTION 510. Rights and Remedies Cumulative ............................................ 73
SECTION 511. Delay or Omission Not Waiver .............................................. 74
SECTION 512. Control by Holders ........................................................ 74
SECTION 513. Waiver of Past Defaults ................................................... 74
SECTION 514. Undertaking for Costs ..................................................... 75
SECTION 515. Waiver of Stay, or Extension Laws ......................................... 75
ARTICLE SIX The Trustee ................................................... 76
SECTION 601. Certain Duties and Responsibilities ....................................... 76
SECTION 602. Notice of Defaults ........................................................ 77
SECTION 603. Certain Rights of Trustee ................................................. 77
SECTION 604. Not Responsible for Recitals or Issuance of Securities .................... 79
SECTION 605. May Hold Securities ....................................................... 79
SECTION 606. Money Held in Trust ....................................................... 79
SECTION 607. Compensation and Reimbursement ............................................ 80
SECTION 608. Disqualification; Conflicting Interests ................................... 81
SECTION 609. Corporate Trustee Required; Eligibility ................................... 81
SECTION 610. Resignation and Removal; Appointment of Successor ......................... 81
SECTION 611. Acceptance of Appointment by Successor .................................... 83
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business ............... 83
SECTION 613. Preferential Collection of Claims Against Issuer .......................... 84
SECTION 614. Appointment of Authenticating Agent ....................................... 84
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Issuer ............ 86
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders .................. 86
SECTION 702. Preservation of Information; Communications to Holders .................... 86
SECTION 703. Reports by Trustee ........................................................ 87
SECTION 704. Reports by the Issuer ..................................................... 87
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease ........ 88
SECTION 801. Issuer may Consolidate, Etc. .............................................. 88
SECTION 802. Successor Substituted ..................................................... 89
ARTICLE NINE Supplemental Indentures ...................................... 90
SECTION 901. Supplemental Indentures Without Consent of Holders ........................ 90
SECTION 902. Supplemental Indentures with Consent of Holders ........................... 90
SECTION 903. Execution of Supplemental Indentures ...................................... 92
SECTION 904. Effect of Supplemental Indentures ......................................... 92
SECTION 905. Conformity with Trust Indenture Act ....................................... 92
SECTION 906. Reference in Securities to Supplemental Indentures ........................ 92
ARTICLE TEN Covenants .................................................... 92
SECTION 1001. Payment of Principal, Premium and Interest ............................... 92
SECTION 1002. Maintenance of Office or Agency .......................................... 93
SECTION 1003. Money for Security Payments to Be Held in Trust .......................... 93
SECTION 1004. Existence ................................................................ 95
SECTION 1005. Maintenance of Properties ................................................ 95
SECTION 1006. Payment of Taxes and Other Claims ........................................ 95
SECTION 1007. Maintenance of Insurance ................................................. 96
SECTION 1008. Limitation on Debt ....................................................... 96
SECTION 1009. Limitation on Sale-Leaseback Transactions ................................ 99
SECTION 1010. Limitation on Guarantees of Issuer Debt by Restricted Subsidiaries ....... 100
SECTION 1011. Limitation on Restricted Payments ........................................ 101
</TABLE>
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SECTION 1012. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries .................................................. 105
SECTION 1013. Limitation on Liens ...................................................... 107
SECTION 1014. Limitation on Issuance of Capital Stock of Restricted Subsidiaries ....... 109
SECTION 1015. Asset Sales .............................................................. 109
SECTION 1016. Change of Control ........................................................ 111
SECTION 1017. Transactions with Affiliates and Related Persons ......................... 112
SECTION 1018. Unrestricted Subsidiaries ................................................ 113
SECTION 1019. Provision of Financial Information ....................................... 114
SECTION 1020. Statement by Officers as to Default; Compliance Certificates ............. 115
SECTION 1021. Waiver of Certain Covenants .............................................. 115
ARTICLE ELEVEN Redemption of Securities .................................. 116
SECTION 1101. Right of Redemption ...................................................... 116
SECTION 1102. Applicability of Article ................................................. 116
SECTION 1103. Election to Redeem; Notice to Trustee .................................... 117
SECTION 1104. Selection by Trustee of Securities to Be Redeemed ........................ 117
SECTION 1105. Notice of Redemption ..................................................... 117
SECTION 1106. Deposit of Redemption Price .............................................. 118
SECTION 1107. Securities Payable on Redemption Date .................................... 119
SECTION 1108. Securities Redeemed in Part .............................................. 119
ARTICLE TWELVE Defeasance and Covenant Defeasance ........................ 120
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance .............. 120
SECTION 1202. Defeasance and Discharge ................................................. 120
SECTION 1203. Covenant Defeasance ...................................................... 120
SECTION 1204. Conditions to Defeasance or Covenant Defeasance .......................... 121
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions .................................... 123
SECTION 1206. Reinstatement ............................................................ 124
</TABLE>
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ANNEX A - Form of Regulation S Certificate .......... A-1
ANNEX B - Form of Restricted Securities Certificate . B-1
ANNEX C - Form of Unrestricted Securities Certificate C-1
EXHIBIT A - Form of Registration Rights Agreement
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Globix Corporation
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of February 8, 2000
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
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<S> <C>
310(a)(1)................................................................................... 609
(a)(2)................................................................................ 609
(a)(3)................................................................................ Not Applicable
(a)(4)................................................................................ Not Applicable
(b)................................................................................... 608
................................................................................... 610
311(a)...................................................................................... 613
(b)................................................................................... 613
312(a)...................................................................................... 701
..................................................................................... 702
(b)................................................................................... 702
(c)................................................................................... 702
(b)................................................................................... 703
(c)................................................................................... 703
313(a)...................................................................................... 703
(b)................................................................................... 703
314(a)...................................................................................... 704
(a)(4)................................................................................ 1020
(b)................................................................................... Not Applicable
(c)(1)................................................................................ 102
(c)(2)................................................................................ 102
(c)(3)................................................................................ Not Applicable
(d)................................................................................... Not Applicable
(e)................................................................................... 102
315(a)...................................................................................... 601
(b)................................................................................... 602
(c)................................................................................... 601
(d)................................................................................... 601
(d)(1)................................................................................ 601
(e)................................................................................... 514
316(a)...................................................................................... 512
(a)(1)(A)............................................................................. 512
(a)(1)(B)............................................................................. 513
(a)(2)................................................................................ Not Applicable
(b)................................................................................... 508
317(a)(1)................................................................................... 503
(a)(2)................................................................................ 504
(b)................................................................................... 1003
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.
8
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INDENTURE, dated as of February 8, 2000, between Globix
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware, having its principal executive offices at 139 Centre Street,
New York, New York 10013 (the "Issuer"), and HSBC Bank USA, as Trustee (herein
called the "Trustee") having its corporate trust office at 140 Broadway, 12th
floor, New York, New York 10005.
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of its
12.50% Senior Notes due 2010 (the "Securities") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Issuer has duly
authorized the execution and delivery of this Indenture. The Securities may
consist of Original Securities and/or Exchange Securities, each as defined
herein. The Original Securities and Exchange Securities shall rank pari passu
with one another and shall together constitute a single class and series of
securities.
All things necessary to make the Securities, when executed by
the Issuer and authenticated and delivered hereunder and duly issued by the
Issuer, the valid obligations of the Issuer, and to make this Indenture a valid
agreement of the Issuer, 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 (as defined herein) 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. 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
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10
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 GAAP (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 in the United States as consistently applied by the Issuer at
the Closing Date;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made on a
consolidated basis in accordance with generally accepted accounting principles
but shall not include the accounts of Unrestricted Subsidiaries, except to the
extent of dividends and distributions actually paid to the Issuer or a
Restricted Subsidiary;
(5) 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;
(6) unless the context otherwise requires, any reference to a
"Clause," an "Article" or a "Section", or to an "Annex" or a "Schedule", refers
to a Clause, an Article or Section of, or to an Annex or a Schedule attached to,
this Indenture, as the case may be; and
(7) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time.
Certain terms, used principally in Article Six, are defined in
that Article.
"Acquisition Debt" means Debt of a Person existing at the time
such Person becomes a Restricted Subsidiary or assumed in connection with an
Asset Acquisition, and not Incurred in
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connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any 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
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and CEDEL,
in each case to the extent applicable to such transaction and as in effect at
the time of such transfer or transaction.
"Asset Acquisition" means an acquisition by the Issuer or any
of its Restricted Subsidiaries of the property and assets of any Person other
than the Issuer or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person; provided
that the property and assets acquired are to be used in the Internet Service
Business.
"Asset Sale" by any Person means any transfer, conveyance,
sale, lease, license 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)
(collectively a "transfer") of (I) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Restricted
Subsidiary of such Person, (II) all or substantially all of the assets of such
Person or any of its Restricted Subsidiaries, or (III) any other property,
assets or rights (including intellectual property rights) of such Person or any
of its Restricted Subsidiaries outside of the ordinary course of business;
provided that "Asset Sale" shall not
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include (A) any transfer of all or substantially all of the assets of the Issuer
in a transaction that is made in compliance with the requirements of provisions
of Article Eight of this Indenture (B) any transfer by the Issuer to any Wholly
Owned Restricted Subsidiary of the Issuer or by any Wholly Owned Restricted
Subsidiary of the Issuer to any other Wholly Owned Restricted Subsidiary of the
issuer or to the Issuer in a manner that does not otherwise violate the terms of
this Indenture, (C) transfers made in compliance with the requirements of
Section 1011, (D) transfers constituting the granting of a Permitted Lien, (E)
exchanges of equipment used in the Internet Service Business for other equipment
to be used in the Internet Service Business; provided any such exchange for
equipment with a fair market value in excess of $2.0 million must be approved by
the Issuer's Board of Directors, and (F) transfers of assets, property or other
rights (including intellectual property rights) with a fair market value at the
date of transfer of less than $2.0 million.
"Average Life" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing (i) the sum of
the products of (a) the number of years from the date of determination to the
dates of each successive scheduled principal payment of such debt security and
(b) the amount of such principal payment, by (ii) the sum of all such principal
payments.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of
the Issuer or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, New York are authorized or
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13
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 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
GAAP. 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 GAAP.
"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.
"Cash Equivalents" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of six months or less
from the date of acquisition, (ii) certificates of deposit with maturities of
not more than six months from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of $500.0
million and a Thompson Bank Watch Rating of "B" or better, (iii) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (i) and (ii) above entered into with any
financial institution meeting the qualifications specified in clause (ii) above,
(iv) municipal securities having the highest rating obtainable from Moody's
Investors Service, Inc. (or any successor thereto) or Standard & Poor's Ratings
Group (or any successor thereto) and in each case maturing within 60 days or
less after the date of acquisition, (v) commercial paper having the highest
rating obtainable from Moody's Investors Service, Inc. (or any successor
thereto) or Standard & Poor's Ratings Group (or any successor thereto) and in
each case maturing within six months after the date of acquisition and (vi)
money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i) through (v) of this
definition.
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14
"CEDEL" means CEDEL, S.A. (or any successor securities
clearing agency).
"Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder or
Permitted Group, is or becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person shall be deemed to have
beneficial ownership of all shares that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total outstanding Voting
Stock of the Issuer; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Issuer (together with any new directors whose election to such
board or whose nomination for election by the stockholders of the Issuer was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved), cease for any reason to constitute a
majority of such Board of Directors then in office; (iii) the Issuer
consolidates with or merges with or into any Person or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates with or merges into or with the Issuer, in any such event, pursuant
to a transaction in which the outstanding Voting Stock of the Issuer is changed
into or exchanged for cash, securities or other property, except (x) to the
extent necessary to reflect a change in the jurisdiction of incorporation of the
Issuer or (y) where no "person" or "group"(as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) owns, other than a Permitted Holder or a
Permitted Group, immediately after such transaction, directly or indirectly,
more than 50% of the total outstanding Voting Stock of the surviving
corporation; or (iv) the Issuer is liquidated or dissolved or adopts a plan of
liquidation or dissolution. Notwithstanding the foregoing, in the event any
transaction would result in a "Change of Control" as defined under the 13%
Senior Notes such transaction shall be deemed a Change of Control for purposes
of the Securities as well.
"Closing Date" means February 8, 2000.
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15
"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 Stock" of any Person means Capital Stock of such
Person that does not rank 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.
"Consolidated Accounts Receivable" means the consolidated
accounts receivable (net of the allowance for doubtful accounts calculated in
accordance with GAAP) of the Issuer and its Restricted Subsidiaries that are not
more than 60 days past their due date and that were entered into in the ordinary
course of business on normal payment terms as shown on the most recent internal
consolidated balance sheet of the Issuer and such Restricted Subsidiaries
calculated on a consolidated basis in accordance with GAAP.
"Consolidated Debt to EBITDA Ratio" means the ratio of (a) the
total consolidated Debt as of the date of calculation (the "Determination Date")
to (b) four times the Consolidated EBITDA for the latest fiscal quarter for
which financial information is available immediately preceding such
Determination Date (the "Measurement Period"). For purposes of calculating
Consolidated EBITDA for the Measurement Period immediately prior to the relevant
Determination Date, (i) any Person that is a Restricted Subsidiary on the
Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Consolidated EBITDA) will be deemed to have been a
Restricted Subsidiary at all times during such Measurement Period, (ii) any
Person that is not a Restricted Subsidiary on such Determination Date (or would
cease to be a Restricted Subsidiary on such Determination Date in connection
with the transaction that requires the determination of such Consolidated
EBITDA) will be deemed not to have been a Restricted Subsidiary at any time
during such Measurement Period, and (iii) if the Issuer or any Restricted
Subsidiary shall have in any manner (x) acquired
<PAGE> 16
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(through an acquisition or the commencement of activities constituting such
operating business) or (y) disposed of (by an Asset Sale or the termination or
discontinuance of activities constituting such operating business) any operating
business during such Measurement Period or after the end of such period and on
or prior to such Determination Date, such calculation will be made on a pro
forma basis in accordance with GAAP as if all such transactions had been
consummated prior to the first day of such Measurement Period (it being
understood that in calculating Consolidated EBITDA the exclusions set forth in
clauses (a) through (f) of the definition of Consolidated Net Income shall apply
to any Person acquired as if it were a Restricted Subsidiary).
"Consolidated EBITDA" means, with respect to any period,
Consolidated Net Income for such period increased (without duplication), to the
extent deducted in calculating such Consolidated Net Income, by (a) Consolidated
Income Tax Expense for such period; (b) Consolidated Interest Expense for such
period without regard to the proviso therein; and (c) depreciation, amortization
and any other non-cash items for such period, less any non-cash items to the
extent they increase Consolidated Net Income (including the partial or entire
reversal of reserves taken in prior periods) for such period, of the Issuer and
any Restricted Subsidiary, including, without limitation, amortization of
capitalized debt issuance costs for such period, all of the foregoing determined
on a consolidated basis for the Issuer and its Restricted Subsidiaries in
accordance with GAAP; provided that, if any Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary of the Issuer, Consolidated EBITDA shall be
reduced (to the extent not otherwise reduced in accordance with GAAP) by an
amount equal to (A) the amount of Consolidated EBITDA attributable to such
Restricted Subsidiary multiplied by (B) the percentage ownership interest in
such Restricted Subsidiary not owned on the last day of such period by the
Issuer or any of its Restricted Subsidiaries.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Issuer and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means for any period the
consolidated interest expense included in the consolidated income statement of
the Issuer and its Restricted Subsidiaries
<PAGE> 17
17
for such period calculated on a consolidated basis in accordance with GAAP,
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 (net of any amounts received) with respect to any
Interest Rate or Currency Protection Agreement; (iv) interest on Debt guaranteed
by the Issuer and its Restricted Subsidiaries, to the extent paid by the Issuer
or any Restricted Subsidiary; and (v) the portion of any Capital Lease
Obligation allocable to interest expense; provided that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary of the Issuer,
Consolidated Interest Expense shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of
Consolidated Interest Expense attributable to such Restricted Subsidiary
multiplied by (B) the percentage ownership interest in such Restricted
Subsidiary not owned on the last day of such period by the Issuer or any of its
Restricted Subsidiaries.
"Consolidated Net Income" for any period means the
consolidated net income (or loss) of the Issuer and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded therefrom (a) the net income (or loss) of
any Person acquired by the Issuer or a Restricted Subsidiary of the Issuer 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 Issuer except to the extent of the amount of dividends or
other distributions actually paid to the Issuer or a Restricted Subsidiary of
the Issuer by such Person during such period, (c) gains or losses on Asset Sales
by the Issuer or its Restricted Subsidiaries, (d) all extraordinary gains and
extraordinary losses, (e) the cumulative effect of changes in accounting
principles and (f) the tax effect of any of the items described in clauses (a)
through (e) above.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less amounts attributable to Disqualified Stock of such
Person; provided that, with respect to the Issuer, adjustments following the
date of this Indenture to the accounting books and records of the Issuer
<PAGE> 18
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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 Issuer by another Person shall not be given effect.
"Consolidated Tangible Assets" means, with respect to the
Issuer, the total consolidated assets of the Issuer and its Restricted
Subsidiaries, less the total intangible assets of the Issuer and its Restricted
Subsidiaries, as shown on the most recent internal consolidated balance sheet of
the Issuer and such Restricted Subsidiaries calculated on a consolidated basis
in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which is, at the date as of which this Indenture is dated, located
at 140 Broadway, 12th floor, New York, New York 10005.
"Corporation" means a corporation, association, company,
joint-stock company, limited liability company, partnership 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 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
(including reimbursement obligations with respect thereto, but excluding
obligations with respect to trade letters of credit securing obligations entered
into in the ordinary course of business to the extent such letters of credit are
not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no
later than the third Business Day following receipt by such Person of a demand
for reimbursement), (iv) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including securities
repurchase agreements), (v) every Capital Lease Obligation of such Person, (vi)
all Disqualified Stock issued by such Person, (vii) if such Person is a
Restricted Subsidiary, all Preferred
<PAGE> 19
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Stock issued by such Person, (viii) every obligation under Interest Rate or
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 or is responsible or liable, directly or indirectly, as obligor,
Guarantor or otherwise. The "amount" or "principal amount" of Debt at any time
of determination as used herein represented by (a) any contingent Debt, shall be
the maximum principal amount thereof, (b) 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 GAAP, (c) any
Disqualified Stock, shall be the maximum fixed redemption or repurchase price in
respect thereof, and (d) any Preferred Stock, shall be the maximum voluntary or
involuntary liquidation preference plus accrued and unpaid dividends in respect
thereof, in each case as of such time of determination. In no event shall "Debt"
include any trade payable or accrued expenses arising in the ordinary course of
business.
"Default" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means DTC or, if DTC shall cease to be a clearing
agency registered under the Exchange Act, any other clearing agency registered
under the Exchange Act that is designated as the successor Depositary in an
Issuer Order delivered to the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of
such Person that by its terms, or by the terms of any security into which it is
convertible, or for which it is exchangeable, is, in whole or in part,
redeemable at the option of the holder thereof or otherwise matures or is
required to be redeemed (pursuant to any sinking fund obligation or otherwise,
but other than as a result of the death or disability of the holder thereof or
the termination of the employment with the Issuer or one of its Subsidiaries of
the holder thereof) or is convertible into or exchangeable (in each case at the
option of the holder) for Debt, at any time prior to the final maturity of the
Securities; provided, however, that any Capital Stock which
<PAGE> 20
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would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require the Issuer or its Restricted Subsidiary to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or a "change of control" occurring prior to the final maturity date of the
Securities shall not constitute Disqualified Stock if such provisions applicable
to such Capital Stock are no more favorable to the holders of such stock than
the corresponding provisions applicable to the Securities contained in this
Indenture and such provisions applicable to such Capital Stock specifically
provide that the Issuer and its Restricted Subsidiaries will not repurchase or
redeem any such stock pursuant to such provisions prior to the repurchase of
such Securities as are required to be repurchased pursuant to this Indenture
upon an Asset Sale or a Change of Control.
"Distribution Compliance Period" means the period of 40
consecutive days commencing on the later of (i) the date Securities are first
offered to Persons other than distributors (as defined in Regulation S) in
reliance on Regulation S (the Issuer and Trustee being entitled to rely on
written advice from the Initial Purchasers with respect thereto) and (ii) the
Closing Date.
"Dollars" and "$" means such coins or currency of the United
States of America which is legal tender for payment of public and private debts.
"DTC" means The Depository Trust Company, a New York
corporation.
"Eligible Debt" means (i) Acquisition Debt and (ii) any other
Debt other than, with respect to this clause (ii),(x) Debt in the form of, or
represented by, bonds or other securities or any Guarantee thereof and (y) Debt
that is, or may be, quoted, listed or purchased and sold on any stock exchange,
automated trading system or over-the-counter or other securities market
(including, without prejudice to the generality of the foregoing, the market for
securities eligible for resale pursuant to rule 144A under the Securities Act).
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
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"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934
and any successor act thereto.
"Exchange Offer" means an offer made by the Issuer pursuant to
the Registration Rights Agreement or otherwise under an effective registration
statement under the Securities Act to exchange Exchange Securities for Original
Securities.
"Exchange Offer Registration Statement" means a registration
statement of the Issuer under the Securities Act registering Exchange Securities
for distribution pursuant to an Exchange Offer.
"Exchange Securities" means any Securities issued pursuant to
an Exchange Offer and their Successor Securities.
"Existing Debt" shall mean Debt of the Issuer and its
Restricted Subsidiaries in existence on the Closing Date, including the
Securities.
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles in the
United States which are in effect on the date of original issuance of the
Securities, consistently applied.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"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,
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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 Guaranty by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"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 otherwise become liable in respect of such Debt or other
obligation including by acquisition of Restricted Subsidiaries or the recording,
as required pursuant to GAAP 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 GAAP that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt. For the avoidance of doubt, the accretion of original issue discount shall
not be deemed an Incurrence.
"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 Lehman Brothers Inc., Chase
Securities Inc., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Salomon Smith Barney Inc. and ING Barings LLC as
purchasers of the Securities from the Issuer pursuant to the Purchase Agreement.
"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.
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"Internal Revenue Code" means the Internal Revenue Code of
1986 and any successor thereto.
"Internet Service Business" means: (i)any business principally
engaged in (a) the operation of an internet connectivity or internet enhancement
service as it exists from time to time, including, without limitation, dial up
or dedicated internet service, web hosting or co-location services, security
solutions, the provision and development of software in connection therewith,
configuration services, electronic commerce, intranet solutions, data backup and
restoral, business content and collaboration, communications tools or network
equipment, products or services; or (b) the supply, provision, broadcast,
delivery, distribution, collection or retrieval of information or content
reasonably believed suitable for dissemination through the business, facilities
or capacity of the Issuer or (ii) any business or property reasonably related to
any of the foregoing. A good faith determination by a majority of the Board of
Directors as to whether a business meets the requirements of this definition
shall be conclusive, absent manifest error.
"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 Person, including any payment on a
Guarantee of any obligation of such other Person. Notwithstanding the foregoing,
"Investment" shall not include (i) deposits, partial payments or "earnest money"
made in anticipation of a purchase or acquisition that would be a Permitted
Investment when consummated, (ii) security deposits or prepayments with respect
to operating leases or (iii) payments made in connection with the renewals or
exercise of any option to renew an operating lease.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person or Persons shall have
become such pursuant to the applicable provisions of this Indenture and
thereafter "Issuer" shall mean such successor Person.
<PAGE> 24
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"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer by the Issuer's Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, 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).
"Liquidated Damages" has the meaning specified in the
Registration Rights Agreement.
"Material Restricted Subsidiary" means, at any date of
determination, any Restricted Subsidiary that represents more than 10% of the
Issuer's total consolidated assets at the end of the most recent fiscal quarter
for which financial information is available, or more than 10% of the Issuer's
consolidated net sales or consolidated operating income for the most recent four
fiscal quarters for which financial information is available.
"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 Cash Proceeds" means (i) with respect to any Asset Sale
by any Person, cash or 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 of Debt or other
obligations relating to such properties or assets) therefrom by such Person, net
of (A) all legal, title and recording tax expenses, commissions and other fees
and expenses Incurred and all federal, state, foreign and local taxes required
to be accrued as a liability as a consequence of such Asset Sale, (B) all
payments
<PAGE> 25
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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 in order to obtain a
necessary consent to such Asset Sale or by applicable law, be repaid out of the
proceeds from such Asset Sale, (C) 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 Sale and (D) appropriate amounts to be
provided by such Person or any Restricted Subsidiary thereof, as the case may
be, as a reserve in accordance with GAAP 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 Sale, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Sale, in each case as
determined by the Board of Directors, in its reasonable good faith judgment
evidenced by a Board Resolution; provided, however, that any reduction in such
reserve within twelve months following the consummation of such Asset Sale will
be treated for all purposes of this Indenture and the Securities as a new Asset
Sale at the time of such reduction with Net Cash Proceeds equal to the amount of
such reduction, (ii) with respect to the issuance or sale of Capital Stock, or
options, warrants or rights to purchase Capital Stock, or debt securities or
Disqualified Stock that has been converted into or exchanged for Capital Stock,
the proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations, net of attorney's
fees, accountant's fees and brokerage, consultation, underwriting and other fees
and expenses actually incurred in connection with such issuance or sale,
conversion or exchange and net of any Consolidated Interest Expense attributable
to any debt securities paid to the holders thereof prior to the conversion or
exchange and net of taxes paid or payable as a result thereof.
"Notice of Default" has the meaning specified in Section 602.
"Offer" has the meaning specified in the definition of Offer
to Purchase.
"Offer Expiration Date" has the meaning specified in the
definition of Offer to Purchase.
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"Offer to Purchase" means a written offer (the "Offer") sent
by the Issuer by first class mail, postage prepaid, to each Holder at his
address appearing in the Securities 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 "Offer 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 Offer Expiration Date. The Issuer 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 Issuer's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer. The Offer
shall contain information concerning the business of the Issuer and its
Restricted Subsidiaries which the Issuer 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 Issuer'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 Issuer to make the Offer to
Purchase), (iii) if applicable, appropriate pro forma financial information
concerning the Offer to Purchase and the events requiring the Issuer 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:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
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(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Issuer pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such has been
determined pursuant to the Section hereof requiring the Offer to Purchase) (the
"Purchase Amount");
(4) the purchase price to be paid by the Issuer for each
$1,000 aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) 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 of $1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Securities not tendered or tendered
but not purchased by the Issuer pursuant to the Offer to Purchase will continue
to accrue;
(8) 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 thereon shall cease to accrue on and after
the Purchase Date;
(9) 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 Offer
Expiration Date (such Security being, if the Issuer or the Trustee so requires,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Issuer (or its Paying Agent) receives, not
later than the close of business on the Offer Expiration Date, a telegram,
telex, facsimile transmission
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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;
(11) 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 Issuer 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
Issuer 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); and
(12) that in the case of any Holder whose Security is
purchased only in part, the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
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 the
Chairman of the Board, Chief Executive Officer, Chief Financial Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Issuer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be inside or outside counsel for the Issuer, and who shall be reasonably
acceptable to the Trustee.
"Original Securities" means the Securities issued on the
Closing Date and their Successor Securities.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture,
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except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) 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 Issuer) in trust or set aside and segregated in trust by
the Issuer (if the Issuer shall act as its own Paying Agent) 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 or provision
therefor satisfactory to the Trustee has been made; and
(3) Securities which have been paid pursuant to Section 307 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 protected purchaser in whose hands such
Securities are valid obligations of the Issuer; 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 Issuer or any other
obligor upon the Securities or any Affiliate of the Issuer 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 a Responsible Officer of 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 the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor.
"pari passu", when used with respect to the ranking of any
Debt of any Person in relation to other Debt of such Person, means that each
such Debt (a) either (i) is not subordinated in right of payment to any other
Debt of such Person or (ii) is
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subordinate in right of payment to the same Debt of such Person as is the other
and is so subordinate to the same extent and (b) is not subordinate in right of
payment to the other or to any Debt of such Person as to which the other is not
so subordinate.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Issuer.
"Permitted Group" means any "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Exchange Act) if the Permitted
Holders have both the voting power and the dispositive power relating to more
than 50% of the shares of Voting Stock of the Issuer beneficially owned by such
person or group.
"Permitted Holder" means each of Marc H. Bell and Hicks, Muse,
Tate and Furst Incorporated and (a) with respect to Marc H. Bell, (i) any
spouse, sibling, parent or child of Marc H. Bell, (ii) the estate of Marc H.
Bell during any period in which such estate holds Voting Stock of the Issuer for
the benefit of any Person referred to in clause (i), or (iii) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially owning an interest of more than 50% of
which consist of Marc H. Bell and/or such other Persons referred to in the
immediately preceding clauses (i) and (ii), and (b) with respect to Hicks, Muse,
Tate and Furst Incorporated, any majority-owned Affiliate thereof.
"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 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) an Investment in the Issuer
or a Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Issuer or
a Restricted Subsidiary; provided that such Person's primary business or the
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assets to be transferred or conveyed are reasonably related, ancillary or
complementary to the Internet Service Business; (ii) Cash Equivalents; (iii)
payroll, travel, relocation and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses in
accordance with GAAP; (iv) stock, obligations or securities received (x) in
satisfaction of judgments or (y) in connection with the sale or disposition of a
Person, assets or business; (v) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility and worker's compensation,
performance and other similar deposits; (vi) Permitted Interest Rate or Currency
Agreements; (vii) Strategic Investment; (viii) loans or advances to officers or
employees of the Issuer or any Restricted Subsidiary that do not in the
aggregate exceed $5.0 million at any time outstanding; (ix) Investments in any
Person, provided that the aggregate amount of Investments made pursuant to this
clause does not exceed 5% of Consolidated Tangible Assets; and (x) accounts
receivable in the ordinary course of business (and Investments obtained in
exchange or settlement of accounts receivable for which the Issuer has
determined that collection is not likely).
"Permitted Lien" means any Lien on the assets of the Issuer or
any Restricted Subsidiary permitted under Section 1013.
"Permitted Senior Bank Debt" means Debt Incurred by Issuer or
any Restricted Subsidiary pursuant to one or more senior commercial term loan
and/or revolving credit facilities (including any letter of credit subfacility)
entered into principally with commercial banks and/or other financial
institutions typically party to commercial loan agreements, and any replacement,
extension, renewal, amendment, restatement, refinancing or refunding thereof;
provided that the aggregate principal amount of all Permitted Senior Bank Debt,
at any one time outstanding, shall not exceed $100.0 million plus 85% of the
Issuer's Consolidated Accounts Receivable.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Security" of any particular Security means
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every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 307 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.
"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
January 28, 2000, between the Issuer and the Initial Purchasers, as such
agreement may be amended from time to time.
"Purchase Amount" has the meaning specified in the definition
of Offer to Purchase.
"Purchase Date" has the meaning specified in the definition of
Offer to Purchase.
"Purchase Money Secured Debt" of any Person means Debt
(whether provided by a vendor or a third party) of such Person secured by a Lien
on real or personal property of such Person which Debt (a) constitutes all or a
part of the purchase price or construction cost of such property or (b) is
Incurred prior to, at the time of or within 180 days after the latter of the
acquisition or the substantial completion of such property for the purpose of
financing all or any part of the purchase price or construction cost thereof;
provided, however, that (w) the Debt so incurred does not exceed 100% of the
purchase price or construction cost of such property and related expenses, (x)
such Lien does not extend to or cover any property other than such item of
property and any improvements on such item and proceeds thereof, (y) the
purchase price or construction cost for such property is or should be included
in "addition to property, plant and equipment" in accordance with GAAP, and (z)
the purchase or construction of such property is not part of any acquisition of
a Person or business unit or line of business.
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"Purchase Price" has the meaning specified in the definition
of Offer to Purchase.
"Qualified Consideration" shall mean: (i) cash; (ii) Cash
Equivalents; (iii) assets that are used or useful in the Internet Service
Business; (iv) any securities or other obligations that are converted into or
exchanged for cash or Cash Equivalents within six months after the Asset Sale or
(v) unsubordinated liabilities of the Issuer or the liabilities of a Restricted
Subsidiary assumed by the transferee (or its designee) such that the Issuer or
such Restricted Subsidiary has no further liability therefor, the amount of the
liability to be determined in accordance with GAAP.
"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.
"Registered Securities" means the Exchange Securities and all
other Securities sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with its respective
Successor Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 8, 2000 between the Issuer and the Initial
Purchasers, as such agreement may be amended from time to time, the form of
which is attached hereto as Exhibit A.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 15 or July 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.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Annex A.
"Regulation S Global Security" has the meaning
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specified in Section 201.
"Regulation S Legend" means a legend substantially in the form
of the legend required in the form of Security set forth in Section 202 to be
placed upon Regulation S Securities.
"Regulation S Securities" means all Securities required
pursuant to Section 306(c) to bear a Regulation S Legend.
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 10% or more of the outstanding Common Stock of such
Person (or, in the case of 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.
"Required Filing Date" has the meaning specified in Section
1019.
"Resale Registration Statement" means a shelf registration
statement under the Securities Act filed by the Issuer, if required by, and
meeting the requirements of, the Registration Rights Agreement, registering
Original Securities for resale.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with responsibility for the administration of
this Indenture 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 Payment Basket" has the meaning specified in
Section 1011.
"Restricted Payments" has the meaning specified in Section
1011.
"Restricted Securities" means all Securities required pursuant
to Section 306(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Securities.
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"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Security set forth in Section 202
to be placed upon a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Issuer,
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.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means the Securities purchased by the
Initial Purchasers from the Issuer pursuant to the Purchase Agreement, other
than the Regulation S Securities.
"Securities" has the meaning specified in the first paragraph
of the recitals to this instrument and includes the Exchange Securities.
"Securities Act" means the Securities Act of 1933, and any
successor act thereto.
"Securities Act Legend" means a Restricted Securities Legend
or a Regulation S Legend.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
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"Strategic Investment" means an Investment in any Person
(other than an Unrestricted Subsidiary of the Issuer) whose primary business is
reasonably related, ancillary or complementary to the Internet Service Business,
and such Investment is determined by the Board of Directors of the Issuer to
promote or significantly benefit the businesses of the Issuer and its Restricted
Subsidiaries on the date of such Investment.
"Subordinated Debt" means Debt of the Issuer 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 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 Issuer 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; and (iii) such Debt may not (x) provide for
payments of principal of such Debt at the 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 Issuer (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 maturity date of the Securities or (y) permit redemption or other
retirement (including pursuant to an offer to purchase made by the Issuer) of
such other Debt at the option of the holder thereof prior to the final maturity
date 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 Issuer) which is conditioned upon a change of control of the Issuer
pursuant to provisions substantially similar to Section 1016 (and which shall
provide that such Debt will not be repurchased pursuant to such provisions prior
to the Issuer's
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repurchase of the Securities required to be repurchased by the Issuer pursuant
to Section 1016); provided, however, that any Debt which would constitute
Subordinated Debt but for provisions thereof giving holders thereof the right to
require the Issuer or a Restricted Subsidiary to repurchase or redeem such
Subordinated Debt upon the occurrence of an asset sale occurring prior to the
final maturity of the Securities shall constitute Subordinated Debt if such
provisions applicable to such Subordinated Debt are nor more favorable to the
holders of such Debt than the provisions applicable to the Securities contained
in Section 1015 and such provisions applicable to such Debt specifically provide
that the Issuer and its Restricted Subsidiaries will not repurchase or redeem
any such Debt pursuant to such provisions prior to the repurchase of such
Securities as are required to be repurchased pursuant to Section 1015.
"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 Restricted
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 purpose of this definition,
any Security authenticated and delivered under Section 307 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.
"13% Senior Notes" means the Issuer's 13% Senior Notes due
2005 issued under an indenture dated as of April 30, 1998.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent
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required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"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.
"Unregistered Security" means any Security that is not a
Registered Security.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" has the meaning set forth in Section
1018.
"U.S. Government Securities" means securities that are direct
obligations of the United States of America, direct obligations of the Federal
Home Loan Mortgage Corporation, direct obligations of the Federal National
Mortgage Association, securities which the timely payment of whose principal and
interest is unconditionally guaranteed by the full faith and credit of the
United States of America, trust receipts or other evidence of a direct claim
upon the instruments described above and money market mutual funds that invest
solely in such securities.
"U.S. Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor if the
trust is revocable) is a U.S. Person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any non-discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of
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a U.S. Person, (vii) any discretionary or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such an account held for
the benefit or account of a non-U.S. Person) and (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. Person principally for the purpose of investing in
securities not registered under the Securities Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(a) under the Securities Act who are not natural persons, estates or trusts);
provided, however, that the term a "U.S. Person" does not include (A) a branch
or agency of a U.S. Person that is located and operating outside the United
States for valid business purposes as a locally regulated branch or agency
engaged in the banking or insurance business, (B) any employee benefit plan
established and administered in accordance with the law, customary practices and
documentation of a foreign country and (C) the international organizations set
forth in Section 902(k)(2) of Regulation S under the Securities Act and any
other similar international organizations, and its agencies, affiliates and
pension plans.
"Vice President", when used with respect to the Issuer, 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) at 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 all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person or by such Person and one or more Wholly
Owned Restricted Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Trustee to
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take any action under any provision of this Indenture, the Issuer shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Issuer, 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 (in form
reasonably satisfactory to the Trustee):
(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 (which, in the case of an Opinion of Counsel and if permitted
under the Trust Indenture Act, may be limited to reliance on an Officers'
Certificate as to matters of fact); 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 document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
eligible and qualified Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Issuer stating the information
on which counsel is relying unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are 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 10. Acts of Holders; Record Date. 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 an 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 in accordance with
Section 105 hereof, and, where it is hereby expressly required, to the Issuer.
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 Issuer, 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 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 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
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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 Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
For purposes of this Indenture, any action by the Holders
which may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.
The Issuer 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 Issuer 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 Issuer 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 Issuer from setting a new record
date for any action
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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
Issuer, at its 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
Issuer's expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Issuer 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
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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 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 Issuer. 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 Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing, to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Issuer, 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, or delivered to
the Issuer addressed to it at the address of its principal office specified in
the first paragraph of this instrument, unless the Issuer shall notify the
Trustee in writing of any other address, in which case at such other address.
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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 in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the 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, with a copy to the Trustee at the same time mailed or
delivered in accordance with Section 105(1) hereof. 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. Conflict with Trust Indenture Act. If any
provision hereof qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be 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. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this Indenture, the
Issuer and the Trustee shall be deemed for all purposes hereof to be subject to
and governed by the Trust Indenture Act to the same extent as would be the case
if this Indenture were so qualified on the date hereof.
SECTION 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents
<PAGE> 46
46
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 Issuer shall bind its respective successors
and assigns, whether so expressed or not.
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
AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER 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 or Purchase Date, or at the Stated Maturity, provided that
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Redemption Date or Purchase Date or Stated
Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and
Regulation S Securities. The Securities and the
<PAGE> 47
47
Trustee's certificates of authentication shall be in substantially the forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by its
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 provided that such manner is
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Upon their original issuance, Rule 144A Securities shall be
issued in the form of one or more Global Securities registered in the name of
DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian
for DTC, for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may direct).
Such Global Securities, together with their Successor Securities which are
Global Securities, other than the Regulation S Global Security, are collectively
herein called "Restricted Global Securities".
Upon their original issuance, Regulation S Securities (herein
called "Regulation S Global Security") shall be issued in the form of one or
more Global Securities registered in the name of DTC, as Depositary, or its
nominee and deposited with the Trustee at its Corporate Trust Office, as
custodian for DTC, for credit to Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of Euroclear and CEDEL, for credit to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as such beneficial owners may direct) in accordance with
the rules thereof.
Beneficial interests in the Regulation S Global Security may
only be held through Euroclear and CEDEL until the expiration of the
Distribution Compliance Period as provided in
<PAGE> 48
48
Section 306(b)(4).
SECTION 202. Form of Face of Security. [IF THE SECURITY IS A
RESTRICTED SECURITY OR REGULATION S SECURITY, THEN INSERT -- THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE l44(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO GLOBIX, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHICH THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
GLOBIX AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E), TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
<PAGE> 49
49
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.]
[IF THE SECURITY IS A GLOBAL SECURITY, 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 THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST
COMPANY IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS SECURITY 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 SECURITY 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.]
GLOBIX CORPORATION
12.50% Senior Notes due 2010
[If Restricted Security CUSIP No. [_____ _____]
[If Regulation S Security -- ISIN No. [___________]
No. __________
$________
<PAGE> 50
50
Globix Corporation, a corporation duly organized and existing
under the laws of Delaware (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promise to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars (such amount the "principal
amount" of this Security) [IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT --
, or such other principal amount (which, when taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $600,000,000 in
the aggregate at any time) as may be set forth in the records of the Trustee as
referred to in accordance with the Indenture,] on February 1, 2010 and to pay
interest thereon from February 8, 2000 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable in arrears
semi-annually on February 1 and August 1 in each year, commencing August 1, 2000
at the rate of 12.50% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this 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 the January 15 or July 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 the relevant 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 in accordance with Section 308 of the Indenture, 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. Interest on this Security shall be computed on
the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Security [IF THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT --
shall be made by wire transfer of immediately available funds to the accounts
specified by the
<PAGE> 51
51
Holder of this Security, provided, however] [INSERT IF THE SECURITY IS NOT A
GLOBAL SECURITY -- will be made at the office or agency of the Issuer 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 Issuer 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 all payments of the principal (and premium, if any) and interest
on Securities, the Holders of which hold more than $5.0 million in principal
amount and have given wire transfer instructions to the Issuer or its agent at
least 10 Business Days prior to the applicable payment date, shall be made by
wire transfer of immediately available funds to the accounts specified by such
Holders in such instructions; provided, further,] that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
Person entitled thereto at such address as shall appear in the Security
Register.
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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated: February __, 2000. GLOBIX CORPORATION
By: ______________________________
Name:
Title:
<PAGE> 52
52
______________________________
Name:
Title:
<PAGE> 53
53
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
HSBC Bank USA,
as Trustee
By:___________________________________________
Authorized Signatory
SECTION 203. Form of Reverse of Security. This Security is one
of a duly authorized issue of Securities of the Issuer designated as its 12.50%
Senior Notes due 2010 (herein called the "Securities"), issued and to be issued
under an Indenture, dated as of February 8, 2000 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), among the
Issuer and HSBC Bank USA, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
Except as described below, the Securities are not redeemable
at the Issuer's option prior to February 1, 2005.
The Securities are subject to redemption, at the option of the
Issuer, in whole or in part, at any time on or after February 1, 2005 and prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed 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 following Redemption Prices (expressed as percentages of the principal
amount) plus accrued and unpaid interest and
<PAGE> 54
54
Liquidated Damages, if any, to but excluding the Redemption Date (subject to the
right of Holders of record on the immediately preceding Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period beginning February 1 of the years
indicated below:
<TABLE>
<CAPTION>
REDEMPTION YEAR PRICE
--------------- -----
<S> <C>
2005 .................................................. 106.250%
2006 .................................................. 104.167%
2007 .................................................. 102.083%
2008 and thereafter ................................... 100.000%
</TABLE>
In addition, at any time prior to February 1, 2003, the Issuer
may redeem up to 35% of the aggregate Outstanding principal amount of the
Securities with the Net Cash Proceeds of one or more sales of Capital Stock
(other than Disqualified Stock) at a Redemption Price equal to 112.500% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon and
Liquidated Damages, if any, to the date of redemption; provided that at least
65% of the original principal amount of the Securities remains Outstanding
immediately following such redemption. In order to effect the foregoing
redemption, the Issuer must mail a notice of redemption no later than 45 days
after the related sale of Capital Stock and must consummate such redemption
within 60 days of the closing of the related sale of Capital Stock.
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities 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, there
may be declared due and payable the principal amount of (together with accrued
and unpaid interest on) the Securities, in the manner and with the effect
provided in the Indenture.
[IF SECURITY IS A RESTRICTED SECURITY, THEN INSERT --
<PAGE> 55
55
The Holder of this Security (and any Person that has a beneficial interest in
this Security) is entitled to the benefits of a Registration Rights Agreement,
dated as of February 8, 2000 and as the same may be amended from time to time
(the "Registration Rights Agreement"), executed by the Issuer. The Registration
Rights Agreement provides that Liquidated Damages will be payable by the Issuer
on the Securities for specified periods if the Issuer does not comply with
certain of its obligations thereunder. The Issuer agrees to pay Liquidated
Damages, if any, accruing on this Security.]
The Indenture provides that, subject to certain conditions, if
(i) certain Net Cash Proceeds are available to the Issuer as a result of an
Asset Sale or (ii) a Change of Control occurs, the Issuer shall be required to
make an Offer to Purchase for all or a specified portion of the Securities.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities under
the Indenture at any time by the Issuer 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 Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and its 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.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall
<PAGE> 56
56
have made written request to the Trustee to institute proceedings in respect of
such Event of Default and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities at the time Outstanding a direction inconsistent with such
request and shall have failed to institute any such proceeding for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to certain suits described in the Indenture, including any suit instituted
by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates
expressed herein (or, in the case of redemption, on or after the Redemption Date
or, in the case of any purchase of this Security required to be made pursuant to
an Offer to Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
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 Issuer in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer 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 for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
<PAGE> 57
57
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer 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 Issuer, the Trustee and any agent of the Issuer 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 neither the
Issuer, the Trustee nor 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.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security and the rights of the parties
thereunder and hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York.
<PAGE> 58
58
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its
entirety by the Issuer pursuant to Section 1015 or 1016 of the Indenture, check
the box:
[_]
If you want to elect to have only a part of this Security
purchased by the Issuer pursuant to Section 1015 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:___________________________________________
(Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15.)
SECTION 204. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication shall be in substantially the following form:
This is one of the Securities referred to in the
within-mentioned Indenture.
HSBC Bank USA,
as Trustee
By _________________________
Authorized Signatory
ARTICLE THREE
The Securities
<PAGE> 59
59
SECTION 301. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $600.0 million 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, 307, 906 or 1108 or in connection with an
Offer to Purchase pursuant to Section 1015 or 1016 (all Securities referred to
in this exception being deemed "Substitute Securities"). On the Closing Date,
the Issuer shall not issue in excess of $600.0 million in aggregate principal
amount of Securities). The Issuer may issue Exchange Securities from time to
time pursuant to an Exchange Offer, in each case pursuant to a Board Resolution
and subject to Section 303, 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 310 and shall no longer
be deemed Outstanding for any purpose.
The Securities shall be known and designated as the "12.50% Senior
Notes due 2010" of the Issuer. Their final maturity date shall be February 1,
2010 and they shall bear interest at the rate of 12.50% per annum, from February
8, 2000 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, regardless of when issued,
payable semi-annually in arrears on February 1 and August 1, commencing August
1, 2000, until the principal thereof is paid or made available for payment.
Notwithstanding the foregoing, Liquidated Damages shall be payable on the
Securities under the circumstances and in the manner specified in the
Registration Rights Agreement. Accrued Liquidated Damages, if any, shall be paid
in cash in arrears semi-annually on February 1 and August 1 in each year.
Whenever in this Indenture there is mentioned, in any context, interest on, or
in respect of, any Security, such mention shall be deemed to include mention of
Liquidated Damages to the extent that, in such context, Liquidated Damages are,
were or would be accrued or payable in respect thereof and express mention of
Liquidated Damages in any provisions hereof shall not be construed as excluding
Liquidated Damages in those provisions hereof where such express mention is not
made.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York
<PAGE> 60
60
maintained for such purpose and at any other office or agency maintained by the
Issuer for such purpose or, in the case of a Global Security, shall be paid by
wire transfer of immediately available funds to the accounts specified by the
Holders of the Securities; provided, however, that at the option of the Issuer
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 Issuer pursuant to
an Offer to Purchase as provided in Sections 1015 and 1016.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance and covenant defeasance
as provided in Article Twelve.
The Securities shall not have the benefit of any sinking fund
obligation.
Unless the context otherwise requires, the Original Securities and the
Exchange Securities shall constitute one class and series of securities for all
purposes under this Indenture, including with respect to any amendment, waiver,
acceleration or other Act of Holders, redemption or Offer to Purchase.
SECTION 302. Denominations. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Issuer by any two of the Chairman
of the Board, Chief Executive Officer, the President, any Vice President, the
Secretary, any Assistant Secretary, the Chief Financial Officer, the Treasurer
or any Assistant Treasurer. 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 an Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices at
<PAGE> 61
61
the time of the authentication and delivery of such Securities or did not hold
such offices at the date of issuance of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Original Securities executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Original Securities; and the Trustee in
accordance with the Issuer Order shall authenticate and make available for
delivery such Original Securities as provided in this Indenture 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 to such Securities, the Issuer may deliver Exchange
Securities executed by the Issuer to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such Exchange
Securities and a like principal amount of Original Securities for cancellation
in accordance with Section 310 of this Indenture, and the Trustee in accordance
with the Issuer Order shall authenticate and make available for delivery such
Securities. Prior to authenticating such Exchange Securities, and accepting any
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, if requested, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel as to the
due authorization, execution and delivery of the Exchange Securities, the
enforceability of the Exchange Securities, and the duly incorporated status and
good standing of the Issuer.
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.
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SECTION 304. Temporary Securities. Pending the preparation of
definitive Securities, the Issuer may execute, and upon Issuer Order, the
Trustee shall authenticate and deliver, temporary Securities, which Securities
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
thereof.
If temporary Securities are issued, the Issuer 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 Issuer designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation (which cancellation shall be only by
the Trustee) of any one or more temporary Securities, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same rights and benefits under this Indenture as definitive Securities.
SECTION 305. Global Securities. (a) Each Global Security authenticated
under this Indenture shall be registered in the name of the Depositary
designated by the Issuer for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) 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 Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either
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case the Issuer fails to appoint a successor Depositary within 120 days of such
notice, (ii) the Issuer executes and delivers to the Trustee an Issuer Order
stating that it elects to cause the issuance of the Securities in certificated
form and that all Global Securities shall be exchanged in whole for Securities
that are not Global Securities (in which case such exchange shall be effected by
the Trustee) or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities.
(c) 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 Depositary 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, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 306(b)
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 Depositary 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 Issuer 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 Depositary 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 and in accordance with all
applicable laws.
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(d) 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 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
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange
Generally; Restrictions on Transfer and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange Generally. The
Issuer 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 of the Issuer designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer 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.
Subject to the other provisions of this Indenture regarding
restrictions on transfer, upon surrender for registration of transfer of any
Security at an office or agency of the Issuer designated pursuant to Section
1002 for such purpose, the Issuer shall 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, of a
like aggregate principal amount
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and bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 306, Securities may be exchanged for other Securities of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, 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 Issuer, evidencing the same
debt, and (except for the differences between Original Securities and Exchange
Securities provided for herein) 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 Issuer or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Issuer and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer 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 Sections 304, 305, 306, 906, 1015, 1016 or 1108 not
involving any transfer.
The Issuer and the Trustee 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
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redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section
306(b). Transfers and exchanges subject to this Section 306(b) shall also be
subject to the other provisions of this Indenture that are not inconsistent with
this Section 306(b).
(1) Restricted Global Security to Regulation S Global Security. If the
owner of a beneficial interest in the Restricted Global Security wishes at any
time to transfer such interest to a Person who is required or permitted to
acquire the same in the form of a beneficial interest in the Regulation S Global
Security (if before the expiration of the Distribution Compliance Period, such
Regulation S Global Security shall be held only in or through accounts
maintained at the Depositary by Euroclear or CEDEL, and if thereafter, such
transfer may be effected only in accordance with the provisions of this Clause
(b)(1), subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (A) an order given by the Depositary or its authorized
representative directing the Trustee that a beneficial interest in the
Regulation S Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Restricted Global Security in an equal principal amount be debited from another
specified Agent Member's account and (B) a Regulation S Certificate,
satisfactory to the Trustee and duly executed by the owner of such beneficial
interest in the Restricted Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar but subject to Clause (b)(4)
below, shall reduce the principal amount of the Restricted Global Security and
increase the principal amount of the Regulation S Global Security by such
specified principal amount as provided in Section 305(c).
(2) Regulation S Global Security to Restricted Global Security. If the
owner of a beneficial interest in the Regulation S Global Security wishes at any
time to transfer such interest to a Person who is required or permitted to
acquire the same in the form of a beneficial interest in the Restricted
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Global Security, such transfer may be effected only in accordance with this
Clause (b)(2) and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) an order given by the Depositary or its
authorized representative directing the Trustee that a beneficial interest in
the Restricted Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited from
another specified Agent Member's account and (B) if such transfer is to occur
during the Distribution Compliance Period, a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by the owner of such beneficial
interest in the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce the principal
amount of the Regulation S Global Security and increase the principal amount of
the Restricted Global Security by such specified principal amount as provided in
Section 305(c).
(3) Exchanges between Global Security and Non-Global Security. A
beneficial interest in a Global Security may be exchanged for a Security that is
not a Global Security as provided in Section 305, provided that, if such
interest is a beneficial interest in the Restricted Global Security, then such
interest shall be exchanged for a Restricted Security (subject in each case to
Section 306(c).
(4) Regulation S Global Security to be Held Through Euroclear or CEDEL
during Distribution Compliance Period. The Issuer shall use its best efforts to
cause the Depositary to ensure that beneficial interests in the Regulation S
Global Security may be held only in or through accounts maintained at the
Depositary by Euroclear or CEDEL (or by Agent Members acting for the account
thereof) until the expiration of the Distribution Compliance Period, and no
Person shall be entitled to effect any transfer or exchange that would result in
any such interest being held otherwise than in or through such an account until
the expiration of the Distribution Compliance Period; provided that this Clause
(b)(4) shall not prohibit any transfer or exchange of such an interest in
accordance with Clause (b)(2) above.
(c) Securities Act Legends. Rule 144A Securities and their respective
Successor Securities shall bear a Restricted Securities Legend, and Regulation S
Securities and their
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Successor Securities shall bear a Regulation S Legend, subject to the following:
(1) subject to the following Clauses of this Section 306(c), a Security
or any portion thereof which is exchanged, upon registration of transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented thereby;
(2) subject to the following Clauses of this Section 306(c), a new
Security which is not a Global Security and is issued in exchange for another
Security (including a Global Security) or any portion thereof, upon registration
of transfer or otherwise, shall bear the Securities Act Legend borne by such
other Security, provided that, if such new Security is required pursuant to
Section 306(b)(3) to be issued in the form of a Restricted Security, it shall
bear a Restricted Securities Legend and, if such new Security is so required to
be issued in the form of a Regulation S Security, it shall bear a Regulation S
Legend;
(3) Registered Securities shall not bear a Securities Act Legend;
(4) at any time after the Securities may be freely transferred without
registration under the Securities Act or without being subject to transfer
restrictions pursuant to the Securities Act, a new Security which does not bear
a Securities Act Legend may be issued in exchange for or in lieu of a Security
(other than a Global Security) or any portion thereof which bears such a legend
if the Trustee has received an Unrestricted Securities Certificate, satisfactory
to the Trustee and duly executed by the Holder of such legended Security or his
attorney duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and make available for delivery such
a new Security in exchange for or in lieu of such other Security as provided in
this Article Three;
(5) a new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global Security)
or any portion thereof which bears such a legend if, in the Issuer's judgment,
placing such a legend upon such new Security is not necessary to ensure
compliance with the registration requirements of the Securities Act, and the
Trustee, at the written direction of the Issuer, shall
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authenticate and deliver such a new Security as provided in this Article Three
provided that, the Trustee, if it deems reasonably necessary or appropriate, may
request an Opinion of Counsel in connection with such direction;
(6) at any time after the Distribution Compliance Period, a new
Security which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Regulation S Security or any portion thereof which bears
such a legend, and after such date, the Trustee shall authenticate and make
available for delivery such a new Security in exchange for or in lieu of such
other Security as provided in this Article Three; and
Notwithstanding the foregoing provisions of this Section 306(c), a
Successor Security of a Security that does not bear a particular form of
Securities Act Legend shall not bear such form of legend unless the Issuer has
reasonable cause to believe that such Successor Security is a "restricted
security" within the meaning of Rule 144, in which case the Trustee, at the
written direction of the Issuer, shall authenticate and make available for
delivery a new Security bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article Three.
Each Holder of a Security agrees to indemnify the Trustee against any
liability that may result from the transfer, exchange or assignment of such
Holder's Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 307. Mutilated, Destroyed, Lost and Stolen
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Securities. If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and make available for delivery
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 Issuer 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 either of them to save each of
them and any agent of either of them completely harmless, then, in the absence
of notice to the Issuer or the Trustee that such Security has been acquired by a
protected purchaser, the Issuer shall execute and upon its written request the
Trustee shall authenticate and make available for delivery, 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 Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
and the Trustee (without duplication) 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 and reasonable attorneys' fees) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, 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.
SECTION 308. Payment of Interest; Interest Rights
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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 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 forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder on such date,
and such Defaulted Interest may be paid by the Issuer, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Issuer 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 Issuer 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 Issuer 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 Issuer
of such Special Record Date and, in the name and at the sole expense of the
Issuer, 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
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business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Issuer 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 written notice given by the Issuer to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee in its reasonable judgment.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration, transfer, 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 309. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer 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 308) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by notice to the contrary.
None of the Issuer, the Trustee or any agent of the Issuer or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Issuer or the Trustee, or any agent of the Issuer or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as a
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Holder of such Security in global form.
SECTION 310. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange or pursuant to any Offer to
Purchase pursuant to Section 1015 or 1016 shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by, and only by, the Trustee. The Issuer may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures unless the Trustee is otherwise
directed by an Issuer Order; provided, that in no event shall the Trustee be
required to destroy such canceled Securities.
SECTION 311. CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Issuer will promptly notify the Trustee of
any change in the "CUSIP" numbers.
SECTION 312. Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to
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any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on written demand of and at the
sole expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture (including, but not limited to,
Article Twelve hereof), when:
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 307 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at its
Stated Maturity within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the sole expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in cash or U.S. Government Securities sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (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 including, without limitation, the payment of all fees and expenses
of the Trustee, its agents and counsel;
(2) the Issuer has paid or caused to be paid all other
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sums payable hereunder by the Issuer including, without limitation, the payment
of all fees and expenses of the Trustee, its agents and counsel; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Issuer to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (i) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the provisions of
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 Issuer acting as its 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,
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, rule or regulation of any administrative or governmental body):
(1) failure to pay principal of (or premium, if any, on) any Security
when due (upon acceleration, optional or mandatory redemption, required
repurchase or otherwise);
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(2) failure to pay interest on any Security when due, and such default
continues for a period of 30 days;
(3) default in the payment of principal and interest on Securities
required to be purchased pursuant to an Offer to Purchase pursuant to Sections
1015 or 1016 when due and payable;
(4) failure to perform or comply with the provisions contained in
Article Eight;
(5) failure to perform any other covenant or agreement of the Issuer
under the Indenture or the Securities and such failure continues for 60 days
after written notice to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of
outstanding Securities;
(6) (i) any default by the Issuer or any Material Restricted Subsidiary
in the payment of the principal, premium, if any, or interest has occurred with
respect to amounts in excess of $10.0 million under any agreement, indenture or
instrument evidencing Debt when the same shall become due and payable in full
and such default shall have continued after any applicable grace period and
shall not have been cured or waived and, if not already matured at its final
maturity in accordance with its terms, the holders of such Debt shall have the
right to accelerate such Debt, or (ii) any event of default as defined in any
agreement, indenture or instrument of the Issuer or any Restricted Subsidiary
evidencing Debt in excess of $10.0 million shall have occurred and the Debt
thereunder, if not already matured at its final maturity in accordance with its
terms, shall have been accelerated;
(7) the rendering of a final judgment or judgments against the Issuer
or any Restricted Subsidiary in an amount in excess of $10.0 million which
remains undischarged or unstayed for a period of 60 days after the date on which
the right to appeal has expired;
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Issuer or any Material Restricted
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State or
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other applicable bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Issuer or any Material Restricted Subsidiary
as bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer or any Material Restricted Subsidiary under any applicable U.S. Federal
or State, or other applicable law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Issuer or any Material Restricted Subsidiary or of any substantial part of the
property of the Issuer or any Material Restricted Subsidiary, or ordering the
winding up or liquidation of the affairs of the Issuer or any Material
Restricted Subsidiary, 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 the Issuer or any Material Restricted
Subsidiary of a voluntary case or proceeding under any applicable U.S. Federal
or State, or other applicable bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated as bankrupt or
insolvent, or the consent by the Issuer or any Material Restricted Subsidiary to
the entry of a decree or order for relief in respect of the Issuer or such
Material Restricted Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State, or other applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer or a Material Restricted
Subsidiary, or the filing by the Issuer or any Material Restricted Subsidiary of
a petition or answer or consent seeking reorganization or relief under any
applicable U.S. Federal or State, or other applicable law, or the consent by the
Issuer or any Material Restricted Subsidiary to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or any
Material Restricted Subsidiary or of substantially all of the property of the
Issuer or any Material Restricted Subsidiary, or the making by the Issuer or any
Material Restricted Subsidiary of an assignment for the benefit of creditors, or
the admission by the Issuer or any Material Restricted Subsidiary in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Issuer or any Material Restricted Subsidiary in
furtherance of any such action.
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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)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
may declare the Securities to be due and payable immediately, by a notice in
writing to the Issuer (and to the Trustee if given by Holders), and upon any
such declaration the principal and any accrued interest on all Outstanding
Securities shall become immediately due and payable. If an Event of Default
specified in Section 501(8) or (9) occurs, the principal of and any accrued
interest on the Securities then Outstanding shall ipso facto become immediately
due and payable without any declaration or other Act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum sufficient
to pay:
(A) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of acceleration
(including any Securities required to have been purchased on the Purchase Date
pursuant to an Offer to Purchase made by the Issuer) and, to the extent that
payment of such interest is lawful, any interest thereon at the rate provided
therefor in the Securities,
(B) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in the Securities,
and
(C) 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 any other amount due under Section 6.07; and
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(2) all Events of Default, other than the non-payment of the principal
of (and premium, if any) or interest on, the 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 Issuer covenants that if there is:
(1) a default 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) a default 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
Issuer, at the Purchase Date thereof,
the Issuer 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 therefor in the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any amounts due the Trustee under
Section 607 hereof.
If the Issuer fails 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 Issuer 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 Issuer or any other obligor upon the Securities, wherever
situated.
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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
effectual 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 Issuer or any other obligor upon the Securities, or
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, receive and distribute any moneys or other property
payable or deliverable on 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 owed to the Trustee for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts the Trustee is entitled to receive under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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
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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, and any
amounts due the Trustee under Section 607 hereof, 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. 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 (including, without limitation,
the reasonable compensation, expenses, disbursements and advances due the
Trustee, its agents and counsel and any other amounts) due to 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 due to the Holders 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.
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 not less than 25% in principal amount of the
Outstanding Securities shall have made a written request to the Trustee to
institute proceedings or pursue remedies in respect of such Event of Default in
its own name, as Trustee hereunder;
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(3) such Holder or Holders have offered and provided to the Trustee
reasonable indemnity satisfactory to the Trustee 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 of indemnity has failed to institute any such proceeding or pursued
any remedies; and
(5) no direction which is 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 Section 308) 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 Issuer 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 or affected 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 Issuer,
the Trustee and the Holders shall be
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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 307, 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 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 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 upon the Trustee, provided
that:
(1) the Trustee may refuse to follow any direction which
(i) conflicts with any rule of law or with this Indenture, or
(ii) the Trustee, in its reasonable judgment, determines may be
unduly prejudicial to the rights of other Holders of Securities, or may expose
the Trustee to personal
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liability, or does not provide adequate indemnification against any loss or
expense resulting from the compliance therewith, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. Subject to Section 5.02, the
Holders of not less than a majority in 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 Issuer), 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.
Upon any such waiver, such default shall be cured and 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, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the reasonable costs
of such suit, and may assess reasonable costs against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided,
that this Section shall not be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee
and provided, further that, subject to a court's discretion, this Section shall
not apply to a suit by the Trustee, and as provided in the Trust Indenture Act.
SECTION 515. Waiver of Stay, or Extension Laws. The
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Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
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.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical
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calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 512 hereof; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
(e) the Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Issuer.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 602. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder (a "Notice of Default") of which it has
knowledge as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default specified in Section 501(5), no such
notice to Holders shall be given until at least 30 days after the
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occurrence of such default (without regard to any Notice of Default). For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
Except in the case of an Event of Default in payment of principal of
(premium, if any) or interest on any Security, the Trustee may withhold notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 603. Certain Rights of Trustee. Subject to the provisions of
Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties, without any independent investigation of any fact or matter
therein;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(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,
request and rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel, shall be full and complete
authorization and protection 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
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offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(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 Issuer, personally or by agent or attorney
upon reasonable advance notice to the Issuer;
(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;
(h) the Trustee shall not be liable for any action it takes, suffers to
be taken, or omits in good faith; and
(i) the Trustee shall not be deemed to have knowledge of any default
(as defined in Section 6.02) or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default or Event of Default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Securities or this Indenture.
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 Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
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SECTION 605. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Issuer, 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
Issuer and any other obligor upon the Securities with the same rights it would
have if it were not Trustee, Authenticating Agent, 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 in writing with the Issuer.
SECTION 607. Compensation and Reimbursement. The Issuer agrees:
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed in
writing from time to time (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 compensation, expenses
and disbursements of its agents, accountants, experts 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 and any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claims,
liability or expense (including, without limitation, reasonable attorneys' fees
and expenses and taxes (other than taxes based upon, measured by or determined
by the income of such Person) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim or liability (not arising from negligence or bad faith) in connection with
the exercise or performance of any of its powers or duties hereunder.
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The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The obligations of the Issuer under this Section 607 shall survive the
resignation or removal of the Trustee and/or satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
applicable bankruptcy law.
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 within 90 days,
apply to the Commission for permission to continue, 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 (or, in the case of a
corporation included in a bank holding company system, the related bank holding
company has) a combined capital and surplus of at least $100.0 million and its
Corporate Trust Office or agency in The Borough of Manhattan, City of New York.
If such Person or bank holding company 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 Person or bank holding company 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.
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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.
(b) The Trustee may resign at any time by giving written notice thereof
to the Issuer.
(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 Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Issuer 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 Issuer 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 for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Issuer by Board
Resolutions of the Issuer 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
Issuer, by Board Resolution of the Issuer, shall promptly appoint a successor
Trustee. If, within
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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
Issuer 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 Issuer. If, within 30 days
after the retiring Trustee resigns, no successor Trustee shall have been so
appointed by the Issuer or the Holders of a majority in principal amount of the
Outstanding Securities and accepted appointment in the manner hereinafter
provided, the retiring Trustee or 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 Issuer 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 Issuer
and to the retiring Trustee a written 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 vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of all sums owing to the retiring
Trustee hereunder and subject to the Lien provided for in Section 607 hereof,
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
Issuer 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. Notwithstanding the replacement of the Trustee pursuant to this Section
611, the Issuer's obligations under Section 607 hereof
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shall continue for the benefit of the retiring Trustee.
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 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, or any corporation
into which all or substantially all of its corporate trust business is
transferred, 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 Issuer. If and
when the Trustee shall be or become a creditor of the Issuer (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 the Issuer(or
any such other obligor).
SECTION 614. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 307, 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
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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 reasonably acceptable
to the Issuer 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 (or, in the case of a corporation included in a bank holding
company system, the related bank holding company has) a combined capital and
surplus of not less than $100.0 million and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent or bank
holding company 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 or bank holding company 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 Issuer. 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 Issuer. 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
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reasonably acceptable to the Issuer and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. 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 Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
[NAME OF AUTHENTICATING AGENT]
By________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each January 15 and July
15, commencing July 15, 2000, 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 Issuer of any such request, a list of similar
form and content as of a date not
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more than 15 days prior to the time such list is furnished; provided, however,
that no such list need be furnished to the Trustee so long as the Trustee is
serving 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 provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after February 15 of each year commencing with the
first February 15 after the issuance of Securities, the Trustee, if so required
under the Trust Indenture Act, shall transmit by mail to all Holders, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a brief
report dated as of such February 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a). The Trustee shall also
transmit by mail to all Holders, in the manner and to the extent provided in
Trust Indenture Act Section 313(c), a brief report in accordance with and with
respect to the matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each such report shall, at the time of such mailing or
transmission to Holders, be filed by the Trustee
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with each stock exchange upon which the Securities are listed, if any, with the
Commission and with the Issuer. The Issuer shall notify the Trustee when the
Securities are listed on any stock exchange, or any delisting thereof.
SECTION 704. Reports by the Issuer. The Issuer shall file with the
Trustee and the Commission, and mail or 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, the Trust Indenture Act; 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 shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission. Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates and written notices delivered to the Trustee in
accordance with the terms of this Indenture).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Issuer may Consolidate, Etc. The Issuer may not, in a
single transaction or a series of related transactions, (i) consolidate or merge
with or into any other Person or permit any other Person to consolidate or merge
with or into the Issuer or (ii) directly or indirectly, transfer, sell, lease or
otherwise dispose of all or substantially all of its assets, unless:
(1) in a transaction in which the Issuer does not survive or in which
the Issuer transfers, sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Issuer (for
purposes of this Article Eight, a "Successor Entity"), shall be organized and
validly existing under the laws of the United States of America, any
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State thereof, or the District of Columbia, and shall expressly assume by an
indenture supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the Issuer's obligations under the
Indenture;
(2) immediately before and after giving effect to such transaction and
treating any Debt which becomes an obligation of the Issuer or a Restricted
Subsidiary as a result of such transaction as having been Incurred by the Issuer
or such Restricted Subsidiary at the time of the transaction, no Event of
Default or event that with the passing of time or the giving of notice, or both,
would constitute an Event of Default shall have occurred and be continuing;
(3) except in the case of any such consolidation or merger of the
Issuer with or into, or any such transfer, sale, lease or other disposition of
assets to, a Wholly Owned Restricted Subsidiary of the Issuer, immediately after
giving effect to such transaction, the Consolidated Net Worth of the Issuer (or
other successor entity to the Issuer) is equal to or greater than the
Consolidated Net Worth of the Issuer immediately prior to the transaction;
(4) except in the case of any such consolidation or merger of the
Issuer with or into, or any such transfer, sale, lease or other disposition of
assets to, a Wholly Owned Restricted Subsidiary of the Issuer, immediately after
giving effect to such transaction and treating any Debt which becomes an
obligation of the Issuer or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Issuer or such Restricted Subsidiary
at the time of the transaction, the Issuer (including any successor entity to
the Issuer) (a) could Incur at least $1.00 of additional Debt pursuant to the
provisions of the Indenture described in the first paragraph of Section 1008 or
(b) the Issuer (including any successor entity to the Issuer) would have a
Consolidated Debt to EBITDA Ratio immediately after giving effect to the
transaction that is (i) less than or equal to the Consolidated Debt to EBITDA
Ratio of the Issuer immediately prior to the transaction, if the ratio
immediately prior to the transaction is positive, or (ii) greater than or equal
to the Consolidated Debt to EBITDA Ratio of the Issuer immediately prior to the
transaction, if the ratio immediately prior to the transaction is negative; and
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(5) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such amalgamation, consolidation,
merger, conveyance, transfer, sale, lease or disposition 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 of the Issuer and the ability of the Issuer to
Incur Debt in accordance with Clauses (3) and (4) of this Section 801, or, if
applicable, of the Successor Entity as required pursuant to the foregoing.
SECTION 802. Successor Substituted. Upon any consolidation of the
Issuer with, or merger of the Issuer into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Issuer as an entirety in accordance with Section
801, the Successor Entity shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor Person had been named herein as the 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.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer, when authorized by a Board
Resolution, 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 an Issuer and the
assumption by any such successor of the covenants of the Issuer herein and in
the Securities; or
(2) to add to the covenants of the Issuer for the
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benefit of the Holders, or to surrender any right or power herein conferred upon
the Issuer; or
(3) to secure the Securities pursuant to the requirements of
Section 1013 or otherwise; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(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 interests of the Holders in any material respect; or
(6) to evidence and provide for the acceptance and appointment
hereunder of a successor Trustee with respect to the Securities.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Issuer
and the Trustee, the Issuer, when authorized by Board Resolutions of the Issuer,
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 the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date or, in
the case of an Offer to Purchase
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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 its 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 1015 or 1016, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner 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, in addition
to the documents required by Section 1.02, 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
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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 Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest. The
Issuer 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.
SECTION 1002. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of 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 Issuer in respect of the Securities and this
Indenture may be served. The Issuer 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 Issuer 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 Issuer hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
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The Issuer 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) 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
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuer will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent, it 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
of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents, it
will, on or before 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 as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Issuer will promptly notify the Trustee of its action or
failure so to act.
The Issuer 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 (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent (or, until such time as this Indenture shall
be qualified under the Trust Indenture Act, which would be applicable to it as
Paying Agent if this Indenture were so qualified) and (ii) in the event and
during the continuance of any default by the Issuer (or any other obligor upon
the Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith
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pay to the Trustee all sums held in trust by such Paying Agent as such.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer 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 Issuer 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 Issuer, 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 Issuer on Issuer Request, or (if then held by the
Issuer) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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
Issuer 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 City of 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 Issuer.
SECTION 1004. Existence. Subject to Article Eight and Section
1015, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory)
and franchises; provided, however, that Issuer shall not be required to preserve
any such right or franchise if the Issuer in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and that the loss thereof is not disadvantageous in any material
respect to the
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Holders.
SECTION 1005. Maintenance of Properties. The Issuer will cause
all material properties used or useful in the conduct of its business or the
business of any Restricted Subsidiary of the Issuer to be maintained and kept in
good condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Issuer may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent an Issuer or any of its Restricted
Subsidiaries from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined by the Issuer or Restricted
Subsidiary in good faith, desirable in (or not adverse to) the conduct of its
business or the business of any Restricted Subsidiary and not adverse in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims. The Issuer
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all material taxes, assessments and governmental charges
levied or imposed upon the Issuer or any of its Restricted Subsidiaries or upon
the income, profits or property of the Issuer or any of its Restricted
Subsidiaries, and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any of its Restricted Subsidiaries; provided, however, that the Issuer
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 negotiations or proceedings.
SECTION 1007. Maintenance of Insurance. The Issuer shall, and
the Issuer shall cause its Restricted Subsidiaries to, keep at all times all of
its properties which are of an insurable nature insured (which may include self-
insurance) against loss or damage with insurers believed by the Issuer 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.
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SECTION 1008. Limitation on Debt. The Issuer will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Debt; provided
that the Issuer may Incur Debt and its Restricted Subsidiaries may Incur
Eligible Debt if, after giving effect to the Incurrence of such Debt and the
receipt and application of the proceeds therefrom, the Consolidated Debt to
EBITDA Ratio would be greater than zero and less than 6:1.
Notwithstanding the foregoing limitation, the following Debt
may be Incurred:
(1) Permitted Senior Bank Debt;
(2) Debt owed (A) by a Restricted Subsidiary to the Issuer
which is evidenced by a promissory note, or (B) to any Restricted Subsidiary
which is evidenced by a promissory note; provided that (i) if the Issuer is the
obligor, such Debt is expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Securities and (ii) in each case any
event which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Debt (other than to the Issuer or
another Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Debt not permitted by this clause (2);
(3) Debt: (A) in respect of performance, surety or appeal
bonds or letters of credit in the ordinary course of business, (B) under
Permitted Interest Rate or Currency Protection Agreements, or (C) arising under,
or arising from, agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the Issuer
Incurred in connection with the disposition of any business, assets or
Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person
acquiring all or any portion of such business, assets or Restricted Subsidiary
for the purpose of financing such acquisition), in a principal amount not to
exceed the gross proceeds actually received by the Issuer or any Restricted
Subsidiary in connection with such disposition;
(4) Debt which is exchanged for or the proceeds of which are
used to replace, refinance or refund, or any extension or renewal (including as
a result of an amendment or restatement)
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of (each a "refinancing"), (a) the Securities, (b) Debt incurred pursuant to
clauses (3), (5), (8) and (9) of this paragraph and this clause (4), in each
case in an aggregate principal amount not to exceed the principal amount of the
Debt so refinanced (together with any accrued interest and any premium and other
payment required to be made with respect to the Debt being refinanced or
refunded, and any fees, costs, expenses, underwriting discounts or commissions
and other payments paid or payable with respect to the Debt incurred pursuant to
this clause (4)); provided, however, that (A) Debt, the proceeds of which are
used to replace, refinance or refund the Securities, or Debt which is pari passu
with or subordinate in right of payment to the Securities, shall only be
permitted if (x) in the case of any refinancing of the Securities or Debt which
is pari passu to the Securities, the refinancing Debt is Incurred by the Issuer
and made pari passu to the Securities or subordinated to the Securities, and (y)
in the case of any refinancing of Debt which is subordinated to the Securities,
the refinancing Debt is Incurred by the Issuer and is subordinated to the
Securities in a manner that is at least as favorable to the Holders as that of
the Debt refinanced; (B) the replacement, refinancing or refunding Debt by its
terms, or by the terms of any agreement or instrument pursuant to which such
Debt is issued, does not have a final maturity prior to the final maturity of
the Securities and has an Average Life longer than the Average Life of the
Securities refinanced; and (C) in the case of any refinancing of Debt Incurred
by the Issuer, the refinancing of Debt may be Incurred only by the Issuer, and
in the case of any refinancing of Debt Incurred by a Restricted Subsidiary, the
refinancing Debt may be Incurred only by such Restricted Subsidiary or the
Issuer;
(5) Acquisition Debt;
(6) Debt of the Issuer or Eligible Debt of Restricted
Subsidiaries not to exceed, at any time outstanding, 2.0 times the Net Cash
Proceeds received by the Issuer after the Closing Date (x) from the issuance and
sale of its Capital Stock (other than Disqualified Stock) or (y) from the
issuance and sale of convertible Debt upon the conversion of that Debt into
Capital Stock, other than Disqualified Stock, in each case to a Person that is
not a Subsidiary of the Issuer, to the extent that such Net Cash Proceeds have
not been used pursuant to clause (C)(3) of the Restricted Payment Basket
calculation in the first paragraph or clauses (iii), (iv) or (vi) of the second
paragraph of Section
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1011 to make a Restricted Payment; provided that such Debt does not have a final
maturity prior to the final maturity of the Securities and has an Average Life
longer than the Average Life of the Securities;
(7) Debt of the Issuer or Eligible Debt of Restricted
Subsidiaries not to exceed, at any time outstanding, 1.0 times the fair market
value at the time of issuance (as determined in good faith by the Board of
Directors and evidenced by a Board Resolution) of the Issuer's Capital Stock,
other than Disqualified Stock, issued in exchange for long term assets purchased
for use in the Internet Service Business or the Capital Stock of a Person
primarily engaged in the Internet Service Business which as a result of such
purchase becomes a Restricted Subsidiary, in each case, acquired by the Issuer
after the Closing Date, to the extent that such fair market value of the
Issuer's Capital Stock has not been used pursuant to clause (C)(4) of the
Restricted Payment Basket calculation in the first paragraph of Section 1011 to
make a Restricted Payment; provided that with respect to the acquisition of a
Person, the fair market value of the Capital Stock shall be reduced by the
amount of goodwill recorded in connection with such acquisition, and, provided,
further, that the Debt of the Issuer Incurred pursuant to this clause (7) does
not have a final maturity prior to the final maturity of the Securities and has
an Average Life longer than the Average Life of the Securities;
(8) Existing Debt;
(9) Debt, including, but not limited to, Capital Lease
Obligations and Purchase Money Secured Debt, Incurred to finance the purchase or
other acquisition of any property, inventory, asset or business directly or
indirectly, by the Issuer or any Restricted Subsidiary used in, or to be used
in, the Internet Service Business;
(10) Subordinated Debt not to exceed $100.0 million in
principal amount outstanding at any time; and
(11) other Debt of the Issuer or any Restricted Subsidiary not
to exceed $75.0 million in principal amount outstanding at any one time.
For purposes of determining compliance with this Section 1008,
in the event that an item of Debt meets the
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criteria of more than one of the types of Debt described in the above clauses,
or is permitted in part under the first paragraph of this Section 1008 and in
part under one or more of the above clauses, the Issuer, in its sole discretion,
shall classify, and from time to time may reclassify, such item of Debt in whole
or in part.
For purposes of determining any particular amount of Debt
under Section 1008, Guarantees, Liens or obligations with respect to letters of
credit supporting Debt otherwise included in the determination of such
particular amount shall not be included.
SECTION 1009. Limitation on Sale-Leaseback Transactions. The
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any sale-leaseback transaction involving any of its assets or properties,
whether now owned or hereafter acquired, whereby the Issuer or a Restricted
Subsidiary sells or transfers such assets or properties and then or thereafter
leases such assets or properties or any part thereof or any other assets or
properties that the Issuer or such Restricted Subsidiary, as the case may be,
intends to use for substantially the same purpose or purposes as the assets or
properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights, of not
in excess of three years; (ii) the sale-leaseback transaction is consummated
within 180 days after the purchase of the assets subject to such transaction;
(iii) the transaction is solely between the Issuer and any Wholly Owned
Restricted Subsidiary of the Issuer or solely between Wholly Owned Restricted
Subsidiaries of the Issuer; or (iv) the Issuer or such Restricted Subsidiary,
within 12 months after the sale or transfer of any assets or properties is
completed, applies an amount no less than the Net Cash Proceeds received from
such sale in accordance with the second paragraph of Section 1015(1).
SECTION 1010. Limitation on Guarantees of Issuer Debt by
Restricted Subsidiaries. The Issuer may not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee, assume or in any other manner become
liable for the payment of any Debt of the Issuer (other than Debt of the Issuer
Incurred pursuant to clauses (1), (3), (5), (9) (other than (x) Debt in
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the form of, or represented by, bonds or other securities or any Guarantee
thereof and (y) Debt that is, or may be, quoted, listed or purchased and sold on
any stock exchange, automated trading system or over-the-counter or other
securities market (including, without prejudice to the generality of the
foregoing, the market for securities eligible for resale pursuant to Rule 144A
under the Securities Act)) or (11) of the second paragraph of Section 1008 or
refinanced pursuant to clause (4) of the second paragraph of Section 1008 of
Debt originally incurred under clause (3), (5) or (9) of the second paragraph of
Section 1008) that is pari passu with or subordinate in right of payment to the
Securities unless: (i) (A) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture providing for a Guarantee of payment of
the Securities by such Restricted Subsidiary; and (B) with respect to any
Guarantee of Debt of the Issuer that is subordinate in right of payment to the
Securities, such Guarantee shall be subordinated to such Restricted Subsidiary's
Guarantee with respect to the Securities at least to the same extent as such
Debt is subordinated to the Securities, and (ii) such Restricted Subsidiary
waives, and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee until the Securities
have been paid in full or otherwise satisfied or discharged.
Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged in the event such Restricted Subsidiary
is sold or disposed of (whether by merger, consolidation, the sale of its
Capital Stock or the sale of all or substantially all of its assets (other than
by lease) and whether or not such Restricted Subsidiary is the surviving
corporation in such transaction) to a Person which is not an Affiliate of the
Issuer if the sale or other disposition, including the application of the
proceeds therefrom, is in compliance with this Indenture; or (ii) in the event
of the release or discharge of the Guarantee which resulted in the creation of
such Restricted Subsidiary's Guarantee with respect to the Securities, except a
discharge or release by or as a result of payment under such Guarantee.
SECTION 1011. Limitation on Restricted Payments. The
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Issuer will not, and will not permit any Restricted Subsidiary directly or
indirectly to:
(1) declare or pay any dividend or make any distribution on or
with respect to its Capital Stock to Persons other than the Issuer or any of its
Restricted Subsidiaries, (other than (x) pro rata dividends or distributions
payable solely in shares of its Capital Stock (other than Disqualified Stock),
or in options, warrants or other rights to acquire shares of such Capital Stock;
(y) pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries held by minority stockholders; or (z) dividends in respect of
Disqualified Stock);
(2) purchase, redeem, retire or otherwise acquire for value
any shares of Capital Stock of (A) the Issuer or an Unrestricted Subsidiary
(including options, warrants or other rights to acquire such shares of Capital
Stock) held by any Person, or (B) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock) held by any
Person other than the Issuer or a Wholly Owned Restricted Subsidiary of the
Issuer, provided, however that this clause (2) shall not prohibit an Investment
which would be considered a Permitted Investment under clause (i) of the
definition of Permitted Investment or the purchase by a Restricted Subsidiary of
its Capital Stock;
(3) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or other acquisition
or retirement for value, of Debt that is subordinated in right of payment to the
Securities; or
(4) make any Investment, other than a Permitted Investment, in
any Person, (such payments or any other actions described in clauses (1) through
(4) above being collectively "Restricted Payments") if, at the time of, and
after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and
be continuing;
(B) the Issuer could not Incur at least $1.00 of Debt
under the first paragraph of Section 1008; or
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(C) the aggregate amount of all Restricted Payments (which
amount, if other than cash, is to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) made after the Closing Date shall exceed the sum (the "Restricted
Payment Basket") of: (1) cumulative Consolidated EBITDA since the date of
original issuance of the Securities through the last day of the last full fiscal
quarter ending immediately preceding the date of such Restricted Payment for
which quarterly or annual financial statements are available; minus (2) 1.5
times the cumulative Consolidated Interest Expense of the Issuer since the date
of original issuance of the Securities through the last day of the last full
fiscal quarter ending immediately preceding the date of such Restricted Payment
for which quarterly or annual financial statements are available; plus (3) the
aggregate Net Cash Proceeds received by the Issuer after the Closing Date from
the issuance and sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Issuer, including an issuance or sale
permitted by this Indenture of convertible Debt of the Issuer for cash
subsequent to the Closing Date upon the conversion of such Debt into Capital
Stock (other than Disqualified Stock) of the Issuer, or from the issuance to a
Person who is not a Subsidiary of the Issuer of any options, warrants or other
rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer
exclusive of any options, warrants or other rights that are redeemable at the
option of the holder, or are required to be redeemed, prior to the stated final
maturity date of the Securities), in each case except to the extent such Net
Cash Proceeds are used to Incur Debt pursuant to clause (6) of the second
paragraph of Section 1008; plus (4) the aggregate amount of the fair market
value at the time of issuance (as determined by the Board of Directors in good
faith and evidenced by a Board Resolution) of Capital Stock (other than
Disqualified Stock) of the Issuer issued in exchange for long term assets to be
used in the Internet Service Business or for the Capital Stock of a Person
primarily engaged in the Internet Service Business which as a result of such
acquisition becomes a Restricted Subsidiary, in each case, acquired by the
Issuer after the original issuance date of the Securities, except to the extent
the fair market value of the Issuer's Capital Stock is used to Incur Debt
pursuant to clause (7) of the second paragraph of Section 1008, provided that
with respect to the acquisition of a Person, the fair market value of the
Capital Stock shall be
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reduced by the amount of goodwill recorded in connection with such acquisition;
plus (5) an amount equal to the net reduction in Investments (other than
reductions in Permitted Investments) in any Person resulting from payments of
interest on Debt, dividends, repayments of loans or advances, or other transfers
of assets, in each case to the Issuer or any Restricted Subsidiary or from the
Net Cash Proceeds from the sale of any such Investment (except, in each case, to
the extent any such payment or proceeds are included in the calculation of
Consolidated EBITDA), or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries, not to exceed, in each case, the amount of Investments
previously made by the Issuer or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after
the date of declaration thereof if, at said date of declaration, such payment
would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Debt that is subordinated in right of
payment to the Securities including premium, if any, and accrued and unpaid
interest, with the proceeds of, Debt Incurred under clause (4) of the second
paragraph of Section 1008.
(iii) the repurchase, redemption or other acquisition
of Capital Stock of the Issuer or a Subsidiary of the Issuer (or options,
warrants or other rights to acquire such Capital Stock) in exchange for
(including upon exercise of a conversion right), or out of the proceeds of a
capital contribution or a substantially concurrent offering of, shares of
Capital Stock (other than Disqualified Stock) of the Issuer (or options,
warrants or other rights to acquire such Capital Stock, other than Disqualified
Stock);
(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other acquisition for value of
Debt of the Issuer which is subordinated in right of payment to the Securities
in exchange for, or out of the proceeds of, a capital contribution or a
substantially
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concurrent offering of, shares of the Capital Stock (other than Disqualified
Stock) of the Issuer (or options, warrants or other rights to acquire such
Capital Stock other than Disqualified Stock);
(v) payments or distributions, to dissenting stockholders
pursuant to applicable law, pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Issuer, and payments of cash in lieu of
fractional shares;
(vi) Investments in any Person provided that the aggregate
amount of Investments made pursuant to this clause (vi) does not exceed the sum
of: (a) the amount of Net Cash Proceeds received by the Issuer after the Closing
Date from the sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Issuer, except to the extent such Net Cash
Proceeds are used to Incur Debt pursuant to clause (6) of the second paragraph
of Section 1008 or to make Restricted Payments pursuant to clause (C)(3) of the
Restricted Payment Basket calculation of the first paragraph, or clauses (iii)
or (iv) of this paragraph, of this Section 1011, plus (b) the net reduction in
Investments made pursuant to this clause (vi), other than reductions in
Permitted Investments, resulting from distributions on or repayments of such
Investments or from the Net Cash Proceeds from the sale of any such Investment
(except in each case to the extent any such payment or proceeds is included in
the calculation of Consolidated EBITDA) or from such Person becoming a
Restricted Subsidiary; provided that the net reduction in any Investment shall
not exceed the amount of such Investment;
(vii) Investments acquired in exchange for Capital Stock
(other than Disqualified Stock) of the Issuer;
(viii) the purchase, redemption or other acquisition or
retirement of Common Stock of the Issuer or any warrant, option or other right
to acquire shares of Common Stock of the Issuer from employees of the Issuer or
its Subsidiaries in an amount not to exceed $2.0 million in any fiscal year;
provided that, amounts not paid for any such purchase, redemption or other
acquisition or retirement in any fiscal year may be accumulated
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and paid in any subsequent fiscal year;
(ix) additional Restricted Payments not to exceed $30.0
million in the aggregate; or
(x) the acquisition of Capital Stock of the Issuer by the
Issuer in connection with the cashless exercise of any options, warrants or
similar rights issued by the Issuer.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payment referred to in clause (ii) thereof
and an exchange of Capital Stock for Capital Stock or Debt referred to in clause
(iii) or (iv) thereof), and the Net Cash Proceeds from any issuance of Capital
Stock referred to in clauses (iii), (iv) and (vi), shall be included in
calculating whether any subsequent Restricted Payment would exceed the
Restricted Payment Basket contained in the first paragraph of this Section 1011.
In the event the proceeds of an issuance of Capital Stock of the Issuer are used
for the redemption, repurchase or other acquisition of the Securities, or Debt
that is pari passu with the Securities, then the Net Cash Proceeds of such
issuance shall be included in clause (C) of the first paragraph of this Section
1011 only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of such Debt.
SECTION 1012. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Issuer may not, and may not
permit any Restricted Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary (i) to pay dividends (in cash or
otherwise) or make any other distributions in respect of its Capital Stock owned
by the Issuer or any other Restricted Subsidiary or pay any Debt or other
obligation owed to the Issuer or any other Restricted Subsidiary; (ii) to make
loans or advances to the Issuer or any other Restricted Subsidiary; or (iii) to
transfer any of its property or assets to the Issuer or any other Restricted
Subsidiary. Notwithstanding the foregoing, the Issuer may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the date of
original issuance of the Securities, and any amendments,
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extensions, refinancings, refundings, renewals, restatements or replacements of
such agreements, provided that the amendments, encumbrances and restrictions in
any such extensions, refinancings, renewals, restatements or replacements are no
less favorable in any material respect to the Holders, than those encumbrances
or restrictions that are then in effect and that are being extended, refinanced,
renewed, restated or replaced;
(2) existing under or by reason of applicable law;
(3) existing or arising in connection with any Permitted
Senior Bank Debt or any Debt incurred pursuant to clause (5) of the second
paragraph of Section 1008, provided that with respect to Debt incurred pursuant
to such clause (5) the encumbrance or restriction is not applicable to any
Person or assets other than the assets or Person so acquired with the Debt
incurred pursuant to such clause (5);
(4) pursuant to an agreement existing prior to the date on
which a Person became a Restricted Subsidiary and not Incurred in anticipation
of becoming a Restricted Subsidiary, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so acquired;
(5) pursuant to an agreement entered into in connection with
Debt Incurred under clause (4) of the second paragraph of Section 1008;
provided, however, that the provisions contained in such agreement related to
such encumbrance or restriction are no more restrictive in any material respect
than the provisions contained in the agreement that is the subject of the
refinancing;
(6) contained in any agreement relating to a Lien on any
property or assets of a Restricted Subsidiary or the Issuer otherwise permitted
under this Indenture, but only to the extent such restrictions restrict the
transfer of the property subject to such Lien;
(7) pursuant to customary nonassignment provisions entered
into in the ordinary course of business in leases, licenses and other contracts
to the extent such provisions restrict the transfer, sublicensing or any such
license or subletting of any such lease or the assignment of rights under any
such contract;
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(8) with respect to a Restricted Subsidiary 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
an Event of Default or an event that, with the passing of time or the giving of
notice, or both, would constitute an Event of Default, that such restriction
terminates if such transaction is closed or abandoned and that the closing or
abandonment of such transaction occurs within one year of the date such
agreement was entered into;
(9) imposed pursuant to contracts for the sale of assets with
respect to the transfer of the assets to be sold pursuant to such contract;
(10) arising or agreed to in the ordinary course of business,
not relating to any Debt, and that do not, individually, or in the aggregate,
detract from the value of property or assets of the Issuer or any Restricted
Subsidiary in any manner material to the Issuer or any Restricted Subsidiary; or
(11) if such encumbrance or restriction is contained in the
terms of any agreement entered into in connection with the Incurrence of Debt if
(A) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant contained in such Debt
or agreement, (B) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Securities than is customary in comparable
financings, and (C) the Issuer determines that any such encumbrance or
restriction will not materially affect the Issuer's ability to make principal or
interest payments on the Securities.
SECTION 1013. Limitation on Liens. The Issuer may not, and may
not permit any Restricted Subsidiary 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
such Debt as to such property or assets for so long as such Debt will be so
secured or (y) in the event such Debt is Debt of
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the Issuer which is subordinate in right of payment to the Securities, prior to
such Debt as to such property or assets for so long as such Debt will be so
secured.
The foregoing restrictions shall not apply to:
(1) Liens in existence on the date of original issuance of the
Securities;
(2) Liens securing only the Securities and any Lien in favor
of the Trustee for the benefit of the Holders arising under the provisions in
this Indenture;
(3) Liens granted by a Restricted Subsidiary in favor of the
Issuer or any Restricted Subsidiary;
(4) Liens to secure Permitted Senior Bank Debt;
(5) Liens securing Purchase Money Secured Debt;
(6) Liens on property existing immediately prior to the time
of acquisition thereof (and not Incurred in anticipation of the financing of
such acquisition), provided that such Lien extends only to the acquired
property;
(7) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary and not incurred in anticipation of
becoming a Restricted Subsidiary, provided that such Lien extends only to the
acquired property;
(8) any interest in or title of a lessor to any property
subject to a Capital Lease Obligation which is permitted under this Indenture;
(9) Liens on the property or assets of a Restricted Subsidiary
securing Debt of such Subsidiary, which Debt is permitted under this Indenture;
or
(10) Liens to secure Debt Incurred pursuant to clause (4) of
the second paragraph of Section 1008; provided that such Lien does not extend to
any property other than the property securing the Debt being replaced, refunded
or refinanced pursuant to clause (4) of the second paragraph of Section 1008.
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SECTION 1014. Limitation on Issuance of Capital Stock of
Restricted Subsidiaries. The Issuer will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except: (i) to the Issuer or a
Wholly Owned Restricted Subsidiary of the Issuer; (ii) issuances of director's
qualifying shares or sales to foreign nationals of shares of Capital Stock of
foreign Restricted Subsidiaries, to the extent required by applicable law; or
(iii) issuances or sales of Common Stock of a Restricted Subsidiary, provided
that (x) the proceeds therefrom shall be treated as proceeds from an Asset Sale
in accordance with Section 1015 and (y) if, immediately after giving effect to
the issuance or sale, the Restricted Subsidiary would no longer constitute a
Restricted Subsidiary, any Investment in any Person remaining after giving
effect to the issuance or sale would have been permitted to be made under
Section 1011 if made on the date of the issuance or sale.
SECTION 1015. Asset Sales.
(1) The Issuer will not, and will not permit any Restricted
Subsidiary to, consummate an Asset Sale unless: (i) the Issuer or the applicable
Restricted Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets sold or
otherwise disposed of (as evidenced by a resolution of the Board of Directors),
and (ii) at least 75% of the consideration received by the Issuer or the
Restricted Subsidiary, as the case may be, from such Asset Sale shall be cash or
other Qualified Consideration.
The Issuer or any Restricted Subsidiary may, within 365 days
of the Asset Sale, invest the Net Cash Proceeds thereof (A) in property or
assets used, or to be used, in the Internet Service Business, or in a company
engaged primarily in the Internet Service Business (if and to the extent
otherwise permitted under this Indenture), or (B) to repay any Debt of the
Issuer, other than subordinated debt, or any Debt of a Restricted Subsidiary.
The amount of such Net Cash Proceeds not used or invested within 365 days of the
Asset Sale in the manner described in clauses (A) and (B) above shall constitute
"Excess Proceeds."
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In the event that Excess Proceeds exceed $10.0 million, the
Issuer shall make an Offer to Purchase that amount of Securities equal to the
amount of Excess Proceeds at a price equal to 100% of the principal amount of
the Securities to be purchased, plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase and, to the extent required by
the terms thereof, any other Debt of the Issuer that is pari passu with the
Securities or Debt of a Restricted Subsidiary. Each Offer to Purchase shall be
mailed within 30 days following the date that the Issuer shall become obligated
to purchase Securities with any Excess Proceeds. Following the completion of an
Offer to Purchase, the amount of Excess Proceeds shall be deemed to be reset at
zero and, to the extent there are any remaining Excess Proceeds the Issuer may
use such Excess Proceeds for any use which is not otherwise prohibited by this
Indenture.
The Issuer will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of Securities pursuant to such Offer to Purchase.
(2) Not later than the date of the Offer with respect to an
Offer to Purchase pursuant to this Section 1015, the Issuer shall deliver to the
Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the
allocation of the Net Cash Proceeds from the Asset Sale(s) pursuant to which
such Offer is being made, including, if amounts are invested in assets related
to the business of the Issuer, the actual assets acquired and a statement
indicating the relationship of such assets to the business of the Issuer and
(iii) the compliance of such allocation with the provisions of Section 1015(1).
The Issuer shall perform its obligations specified in the
Offer for the Offer to Purchase. On or prior to the Purchase Date, the Issuer
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 Issuer 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
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Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Issuer. The Paying
Agent (or the Issuer, 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 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 Issuer to the Holder thereof. The Issuer shall publicly
announce the results of the Offer on or as soon as practicable after the
Purchase Date.
SECTION 1016. Change of Control.
(1) If a Change of Control shall occur at any time, then each
Holder of Securities shall have the right to require that the Issuer purchase
such Holder's Securities, in whole or in part in integral multiples of $1,000,
at a purchase price in cash, in an amount equal to 101% of the principal amount
of such Securities or portion thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase, pursuant to the Offer to
Purchase and in accordance with the other procedures set forth in this
Indenture. Within 30 days following the Change of Control, the Issuer will mail
an Offer to Purchase to each Holder describing the transaction or transactions
that constitute the Change of Control and offering to purchase Securities on the
date specified in the Offer to Purchase. The Issuer will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of the Securities pursuant to the
Offer to Purchase.
(2) The Issuer shall perform its obligations specified in the
Offer to Purchase and the Trustee shall perform its obligations arising
hereunder in connection therewith. Prior to the Purchase Date, the Issuer shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) deposit with the Paying Agent (or, if the Issuer 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
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accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Issuer. The Paying Agent 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 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 Issuer to the Holder thereof. The Issuer shall
publicly announce the results of the Offer on or as soon as practicable after
the Purchase Date.
(3) Notwithstanding the foregoing, the Issuer will not be
required to make an Offer to Purchase upon a Change of Control if a third party
makes the Offer to Purchase in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 1016 and this
Indenture applicable to the Offer to Purchase made by the Issuer and purchases
all Securities validly tendered and not withdrawn under such Offer to Purchase.
SECTION 1017. Transactions with Affiliates and Related
Persons. The Issuer may not, and may not permit any Restricted Subsidiary to,
enter into any transaction (or series of related transactions) not in the
ordinary course of business with an Affiliate or Related Person of the Issuer
(other than the Issuer or a Wholly Owned Restricted Subsidiary of the Issuer)
involving aggregate consideration in excess of $2.0 million, including any
Investment, either directly or indirectly, unless such transaction is on terms
no less favorable to the Issuer 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 the Issuer
or such Restricted Subsidiary. For any transaction (or series of related
transactions) that involves aggregate consideration in excess of $2.0 million
but less than or equal to $10.0 million, the Chief Executive Officer, President,
Chief Financial Officer, or Chief Operating Officer of the Issuer 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 aggregate consideration in excess of $10.0 million,
(a) a majority of the disinterested members of the Board of Directors shall
determine that the transaction satisfies the above criteria
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or (b) the Issuer shall obtain a written opinion of a nationally recognized
investment banking or appraisal firm stating that the transaction is fair to the
Issuer or such Restricted Subsidiary.
The foregoing limitation does not apply, and shall not apply,
to (i) any transaction solely between the Issuer and any Wholly Owned Restricted
Subsidiary of the Issuer or solely between any of the Issuer's Wholly Owned
Restricted Subsidiaries; (ii) the payment of reasonable and customary regular
fees to directors of the Issuer who are not employees of the Issuer; (iii)
licensing or sublicensing or the use of any intellectual property by the Issuer
or any Wholly Owned Restricted Subsidiary of the Issuer to the Issuer or any
Wholly Owned Restricted Subsidiary of the Issuer; (iv) any transaction entered
into for the purpose of granting or altering registration rights with respect to
any Capital Stock of the Issuer; (v) any Restricted Payments not prohibited by
Section 1011 or (vi) compensation, severance and employee benefit arrangements
with any officer, director or employee of the Issuer or any Restricted
Subsidiary, including under any stock option or stock incentive plans, in the
ordinary course of business.
SECTION 1018. Unrestricted Subsidiaries. The Issuer may
designate any Subsidiary of the Issuer to be an "Unrestricted Subsidiary" as
provided below, in which event such Subsidiary and each other Person that is
then, or thereafter becomes, a Subsidiary of such Subsidiary will be deemed to
be an Unrestricted Subsidiary. "Unrestricted Subsidiary" means (1) any
Subsidiary designated as such by the Board of Directors as set forth below where
(a) 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 in a principal amount in excess of
$10.0 million of the Issuer and its Subsidiaries (other than another
Unrestricted Subsidiary) 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 (b) the Issuer could make a Restricted Payment in an amount equal
to the greater of the fair market value and book value of such Subsidiary at the
time of designation pursuant to Section 1011 and such amount is thereafter
treated as a Restricted Payment for the purpose of calculating the aggregate
amount available for Restricted Payments thereunder and (2) any
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Subsidiary of an Unrestricted Subsidiary. The Board of Directors may not
designate a Subsidiary to be an Unrestricted Subsidiary if such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, any other
Subsidiary of the Issuer which is not a Subsidiary of the Subsidiary to be so
designated or otherwise an Unrestricted Subsidiary. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary and shall be
deemed to have made such designation if at such time the condition set forth in
clause (a) in the definition of "Unrestricted Subsidiary" shall cease to be
true, in which case any Debt of such Subsidiary shall be deemed to be Incurred
as of such date.
The Board of Directors of the Issuer may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately
after giving effect to such designation, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof and the
Issuer could incur at least $1.00 of additional Debt under the first paragraph
of Section 1008 on a pro forma consolidated basis taking into account such
designation.
SECTION 1019. Provision of Financial Information. Whether or
not the Issuer is required to be subject to Section 13(a) or 15(d) of the
Exchange Act, the Issuer shall file with the Commission the annual reports,
quarterly reports and other documents which the Issuer would have been required
to file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Issuer were so required, such documents to be
filed with the Commission on or prior to the respective dates (each a "Required
Filing Date," collectively, the "Required Filing Dates") by which the Issuer
would have been required so to file such documents if the Issuer were so
required. The Issuer shall also in any event (a) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders, and (ii) file
with the Trustee, copies of the annual reports, quarterly reports and other
documents which the Issuer files with the Commission pursuant to such Section
13(a) or 15(d) or any successor provision thereto or would have been required to
file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provisions thereto if the Issuer were required to be subject to such
Sections and (b) if filing such documents by the Issuer with the Commission is
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not permitted under the Exchange Act, promptly upon written request supply
copies of such documents to any prospective Holder.
SECTION 1020. Statement by Officers as to Default; Compliance
Certificates.
(1) The Issuer will deliver to the Trustee, within 90 days
after the end of its fiscal year, which initially shall be September 30, and
within 60 days after the end of each fiscal quarter (other than the fourth
fiscal quarter), of the Issuer ending after the date hereof an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Issuer is in default in the performance and observance of any of the terms,
provisions and conditions of Section 801 or Sections 1004 to 1018, inclusive,
and if the Issuer shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
(2) The Issuer shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Issuer becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default, and the action
which the Issuer proposes to take with respect thereto.
(3) The Issuer shall deliver to the Trustee within 90 days
after the end of each fiscal year a written statement by the Issuer's
independent public accountants stating (A) that their audit examination has
included a review of the terms of this Indenture and the Securities as they
relate to accounting matters, and (B) whether, in connection with their audit
examination, any event which, with notice or the lapse of time or both, would
constitute an Event of Default under Section 1008 and Section 1011 has come to
their attention and, if such a default has come to their attention, specifying
the nature and period of the existence thereof.
SECTION 1021. Waiver of Certain Covenants. The Issuer may omit
in any particular instance to comply with any covenant or condition set forth in
Section 801 and Sections 1004 to 1018, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities shall,
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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 Issuer and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect; provided, however, with respect
to an Offer to Purchase as to which an Offer has been mailed, no such waiver may
be made or shall be effective against any Holder tendering Securities pursuant
to such Offer, and the Issuer may not omit to comply with the terms of such
Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
(a) At any time prior to February 1, 2003 the Issuer may
redeem up to 35% of the aggregate Outstanding principal amount of the Securities
with the Net Cash Proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) at a Redemption Price equal to 112.500% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon and
Liquidated Damages, if any, to the date of redemption; provided that at least
65% of the original principal amount of the Securities remains Outstanding
immediately following such redemption. In order to effect the foregoing
redemption, the Issuer must mail a notice of redemption no later than 45 days
after the closing of the related sale of Capital Stock and must consummate such
redemption within 60 days of the closing of the sale of Capital Stock.
(b) The Securities further may be redeemed at the election of
the Issuer, as a whole or from time to time in part, at any time on or after
February 1, 2005, at the Redemption Prices specified in the form of Security
hereinbefore set forth together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article. Redemption of
Securities at the election of the Issuer, as permitted by any provision of this
Indenture, shall be made in accordance with
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such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee. The
election of the Issuer to redeem any Securities pursuant to Section 1101 shall
be evidenced by a Board Resolution of the Issuer. In case of any redemption at
the election of the Issuer of the Securities, the Issuer shall, at least 45 days
prior to the Redemption Date fixed by the Issuer (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 (except
that in the case of a redemption pursuant to Section 1101(a), notice shall be
given by the Issuer to the Trustee not less than 25 days prior to the Redemption
Date). In the case of any redemption pursuant to Section 1101(a), the Issuer
shall also furnish the Trustee an Officers' Certificate stating that the Issuer
is entitled to effect such redemption and setting forth a statement of facts
showing that the condition or conditions precedent to the right of the Issuer to
redeem have occurred or been satisfied.
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or, if
the Securities are not so listed, on a pro rata basis, by lot or by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$1,000.
The Trustee shall promptly notify the Issuer and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to 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.
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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 by the Issuer, or at its request by
the Trustee (except that in the case of a redemption pursuant to Section
1101(a), the Issuer shall give notice and such notice shall be given not less
than 15 nor more than 60 days prior to the Redemption Date), to each Holder of
Securities to be redeemed, (with a copy to the Trustee, delivered or mailed to
the Corporate Trust Office) at his address appearing in the Security Register.
All notices of redemption shall include the CUSIP number and
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 Issuer's right to effect such redemption and the Issuer's
basis therefor,
(4) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption, 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, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the sole expense of the Issuer.
SECTION 1106. Deposit of Redemption Price. On or prior to any
Redemption Date, the Issuer shall deposit with the
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Trustee or with a Paying Agent (or, if the Issuer is acting as its 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 interest on, all the Securities
which are to be redeemed on that date.
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 Issuer shall default
in the payment of the Redemption Price and any accrued 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 Issuer at the
Redemption Price, together with any applicable accrued 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 its terms and
the provisions of Section 308.
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 Issuer designated for that purpose pursuant to Section 1002 (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Issuer
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option by Board Resolution, at any time, 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 Issuer's
exercise of the option provided in Section 1201 applicable to this Section, the
Issuer 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 Issuer 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 Issuer, 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 such 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 Issuer's 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 Issuer may
exercise its option under this Section 1202 notwithstanding the prior exercise
of its option under Section 1203.
SECTION 1203. Covenant Defeasance. Upon the Issuer's exercise
of the option provided in Section 1201 applicable to this Section, (i) the
Issuer shall be released from its obligations under Sections 1005 through 1018,
inclusive, and Clauses (3), (4) and (5) of Section 801 and (ii) the occurrence
of an event specified in Sections 501(3), 501(4) (with respect to Clauses (3),
(4) or (5) of Section 801), 501(5) (with respect to
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any of Sections 1005 through 1018, inclusive), 501(6) and 501(7) 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 Issuer 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 Clause, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Clause or by reason of any
reference in any such Section or Clause 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 then Outstanding Securities:
(1) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article Twelve
applicable to it) 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 public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, the
principal of, premium, if any, and each instalment of interest on the Securities
on the Redemption Date or on the Stated Maturity, as the case may be, of such
principal or instalment of interest in accordance with the terms of this
Indenture and of such Securities. For this purpose, AU.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
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United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) In the case of an election under Section 1202, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize 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 amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge
had not occurred.
(3) In the case of an election under Section 1203, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize 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 amount, in the same manner
and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Issuer shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
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(5) 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
Issuer.
(6) No Event of Default or event which with notice or lapse of
time or both would become an 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 121st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Issuer or any Restricted Subsidiaries is a party or by
which it is bound.
(8) The Issuer 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
Section 1202 or the covenant defeasance under Section 1203 (as the case may be)
have been complied with.
(9) Such 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
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 Issuer acting as its 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
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interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuer 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 Issuer from time to
time upon Issuer Request any money or U.S. Government Obligations held by it as
provided in Section 1204 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent 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
Issuer's 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 or 1203; provided, however, that if the
Issuer makes any payment of principal of (and premium, if any) or interest on
any Security following the reinstatement of its obligations, the Issuer 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GLOBIX CORPORATION
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By ______________________________
Name:
Title:
HSBC BANK USA,
as Trustee
By ______________________________
Name:
Title:
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ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 306(b)(1) of the
Indenture)
HSBC Bank USA
140 Broadway, 12 Floor
New York, New York 10005
Attention: Corporate Trust Administration
Re: % Senior Notes due 2010 of
Globix Corporation (the "Securities")
Reference is made to the Indenture, dated as of February 8,
2000, (the "Indenture"), between Globix Corporation (the "Issuer") and HSBC Bank
USA, as Trustee. Terms used herein and defined in the Indenture or in Regulation
S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are
used herein as so defined.
This certificate relates to U.S. $____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a
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Global Security, they are registered in the name of the Under signed, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security or an interest therein. In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 904 or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Issuer or any such distributor or a person acting on behalf
of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either:
(i) at the time the buy order was originated,
the Transferee was outside the United States or the Owner and any person acting
on its behalf reasonably believed that the Transferee was outside the United
States, or
(ii) the transaction is being executed in, on
or through the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated offshore
securities market and neither the Owner nor any person acting on its behalf
knows that the transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts in contravention of
Rule 904(a)(2) have been made in the United States by or on behalf of the Owner
or any affiliate thereof;
<PAGE> 138
138
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the Distribution
Compliance Period, then the requirements of Rule 904(b)(1) have been satisfied;
and
(F) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities
Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring
(i) after a holding period of at least one year
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from an Issuer or from an affiliate of
the Issuer, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule 144; or
(ii) after a holding period of at least two
years has elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and the Owner is
not, and during the preceding three months has not been, an affiliate of the
Issuer; and
(B) the Specified Securities are being
transferred in compliance with any applicable "blue sky" securities laws of all
applicable states of the United States.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Initial Purchasers.
Dated: _____________________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
<PAGE> 139
139
By: _______________________________________*
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
- ------------------
* Signature must be guaranteed by an eligible Guarantor Institution
(banks, stockbrokers, savings and loan associations and credit unions)
with membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
<PAGE> 140
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 306(b)(2) of the
Indenture)
HSBC Bank USA
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration
Re: % Senior Notes due 2010
of Globix Corporation (the "Securities")
Reference is made to the Indenture, dated as of February 8,
2000 (the "Indenture"), between Globix Corporation (the "Issuer") and HSBC Bank
USA, as Trustee. Terms used herein and defined in the Indenture or in Rule 144A
or Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are
used herein as so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed
below (the "Undersigned") hereby certifies that either (i) it is the sole
beneficial owner of the Specified Securities or (ii) it is acting on behalf of
all the beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by a
Global Security, they are held through the Depositary or an Agent Member in the
name of the Undersigned, as or on behalf of the
<PAGE> 141
141
Owner. If the Specified Securities are not represented by a Global Security,
they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security or an interest in a Restricted Global Security. In
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, (i) the Owner is not a U.S. Person (as defined in the
Indenture) and (ii) such transfer is being effected in accordance with Rule 144A
or Rule 144 under the Securities Act and all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to
a person that the Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer; and
(C) the Specified Securities are being transferred in
compliance with any applicable "blue sky" securities laws of all applicable
states of the United States.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring
(i) after a holding period of at least one year
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from an
<PAGE> 142
142
Issuer or from an affiliate of the Issuer, whichever is later, and is being
effected in accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(ii) after a holding period of at least two
years has elapsed since the Specified Securities were last acquired from an
Issuer or from an affiliate of the Issuer, whichever is later, and the Owner is
not, and during the preceding three months has not been, an affiliate of the
Issuer; and
(B) the Specified Securities are being
transferred in compliance with any applicable "blue sky" securities laws of all
applicable states of the United States.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer, and the Initial Purchasers.
Dated: ___________________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By: _______________________________*
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
____________________________
* Signature must be guaranteed by an eligible Guarantor Institution
(banks, stockbrokers, savings and loan associations and credit unions)
with membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
<PAGE> 143
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to
Section 306(c) of the Indenture)
HSBC Bank USA
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Trustee Administration
Re: % Senior Notes due 2010
of Globix Corporation (the "Securities")
Reference is made to the Indenture, dated as of February 8,
2000 (the "Indenture"), between Globix Corporation (the "Issuer") and HSBC Bank
USA, as Trustee. Terms used herein and defined in the Indenture or in Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_____________ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a
<PAGE> 144
144
Global Security, they are registered in the name of the Under signed, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to Section
306(c) of the Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring after a holding period of at least two
years (computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from an Issuer or from an affiliate
of the Issuer, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Issuer. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer, and the Initial Purchasers.
Dated: ___________________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By: _____________________________________*
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
______________________
* Signature must be guaranteed by an eligible Guarantor Institution
(banks, stockbrokers, savings and loan associations and credit unions)
with membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
<PAGE> 145
REGISTRATION RIGHTS AGREEMENT
<PAGE> 1
Exhibit 4.2
Form of Face of Security. [IF THE SECURITY IS A RESTRICTED SECURITY OR
REGULATION S SECURITY, THEN INSERT -- THE SECURITIES EVIDENCED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT
TO RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE l44(K)
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO GLOBIX, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHICH THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT GLOBIX AND THE TRUSTEE SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR
(E), TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
<PAGE> 2
[IF THE SECURITY IS A GLOBAL SECURITY, 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 THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY IS TO BE
THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS SECURITY 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 SECURITY 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.]
GLOBIX CORPORATION
12.50% Senior Notes due 2010
[If Restricted Security CUSIP No. [_____ _____]
[If Regulation S Security -- ISIN No. [___________]
No. __________
$--------
Globix Corporation, a corporation duly organized and existing under the laws of
Delaware (herein called the "Issuer", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby promise
to pay to __________________, or registered assigns, the principal sum of
_____________________ Dollars (such amount the "principal amount" of this
Security) [IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- , or such other
principal amount (which, when taken together with the principal amounts of all
other Outstanding Securities, shall not exceed $600,000,000 in the aggregate at
any time) as may be set forth in the records of the Trustee as referred to in
accordance with the Indenture,] on February 1, 2010 and to pay interest thereon
from February 8, 2000 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable in arrears semi-annually on
February 1 and August 1 in each year,
<PAGE> 3
commencing August 1, 2000 at the rate of 12.50% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this 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 the January 15 or
July 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 the relevant 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 in accordance with Section 308 of the Indenture, 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. Interest on this
Security shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such interest on this
Security [IF THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT -- shall be made by
wire transfer of immediately available funds to the accounts specified by the
Holder of this Security, provided, however] [INSERT IF THE SECURITY IS NOT A
GLOBAL SECURITY -- will be made at the office or agency of the Issuer 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 Issuer 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 all payments of the principal (and premium, if any) and interest
on Securities, the Holders of which hold more than $5.0 million in principal
amount and have given wire transfer instructions to the Issuer or its agent at
least 10 Business Days prior to the applicable payment date, shall be made by
wire transfer of immediately available funds to the accounts specified by such
Holders in such instructions; provided, further,] that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
Person entitled thereto at such address as shall appear in the Security
Register.
<PAGE> 4
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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
Dated: February __, 2000 GLOBIX CORPORATION
By: ------------------------------
Name:
Title:
- -----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
HSBC Bank USA,
as Trustee
By:___________________________________________
Authorized Signatory
<PAGE> 5
Form of Reverse of Security. This Security is one of a duly authorized issue of
Securities of the Issuer designated as its 12.50% Senior Notes due 2010 (herein
called the "Securities"), issued and to be issued under an Indenture, dated as
of February 8, 2000 (herein called the "Indenture", which term shall have the
meaning assigned to it in such instrument), among the Issuer and HSBC Bank USA,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Except as described below, the Securities are not redeemable at the Issuer's
option prior to February 1, 2005.
The Securities are subject to redemption, at the option of the Issuer, in whole
or in part, at any time on or after February 1, 2005 and prior to maturity, upon
not less than 30 nor more than 60 days' notice mailed 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
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued and unpaid interest and Liquidated Damages, if any, to but
excluding the Redemption Date (subject to the right of Holders of record on the
immediately preceding Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), if redeemed during the
12-month period beginning February 1 of the years indicated below:
<TABLE>
<CAPTION>
REDEMPTION YEAR PRICE
<S> <C>
2005 106.250%
2006 104.167%
2007 102.083%
2008 and thereafter 100.000%
</TABLE>
In addition, at any time prior to February 1, 2003, the Issuer may redeem up to
35% of the aggregate Outstanding principal amount of the Securities with the Net
Cash Proceeds of one or
<PAGE> 6
more sales of Capital Stock (other than Disqualified Stock) at a Redemption
Price equal to 112.500% of the aggregate principal amount thereof, plus accrued
and unpaid interest thereon and Liquidated Damages, if any, to the date of
redemption; provided that at least 65% of the original principal amount of the
Securities remains Outstanding immediately following such redemption. In order
to effect the foregoing redemption, the Issuer must mail a notice of redemption
no later than 45 days after the related sale of Capital Stock and must
consummate such redemption within 60 days of the closing of the related sale of
Capital Stock.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase of this
Security in part only, a new Security or Securities 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, there may be declared due
and payable the principal amount of (together with accrued and unpaid interest
on) the Securities, in the manner and with the effect provided in the Indenture.
[IF SECURITY IS A RESTRICTED SECURITY, THEN INSERT -- The Holder of this
Security (and any Person that has a beneficial interest in this Security) is
entitled to the benefits of a Registration Rights Agreement, dated as of
February 8, 2000 and as the same may be amended from time to time (the
"Registration Rights Agreement"), executed by the Issuer. The Registration
Rights Agreement provides that Liquidated Damages will be payable by the Issuer
on the Securities for specified periods if the Issuer does not comply with
certain of its obligations thereunder. The Issuer agrees to pay Liquidated
Damages, if any, accruing on this Security.]
The Indenture provides that, subject to certain conditions, if (i) certain Net
Cash Proceeds are available to the Issuer as a result of an Asset Sale or (ii) a
Change of Control occurs, the Issuer shall be required to make an Offer to
Purchase for all or a specified portion of the Securities.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of a
<PAGE> 7
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 Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and its 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.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Security required to be made pursuant to an Offer to Purchase,
on the Purchase Date).
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Issuer, 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 Issuer
<PAGE> 8
in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer 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 for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like 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 Issuer 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
Issuer, the Trustee and any agent of the Issuer 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 neither the Issuer, the
Trustee nor 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.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
The Indenture and this Security and the rights of the parties thereunder and
hereunder shall be governed by, and construed in accordance with, the laws of
the State of New York.
<PAGE> 1
EXHIBIT 4.3
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of February 8, 2000
GLOBIX CORPORATION
and
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
ING BARINGS LLC
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Definitions...............................................................1
2. Securities Subject to This Agreement......................................3
3. Registered Exchange Offer.................................................3
4. Shelf Registration........................................................5
5. Liquidated Damages........................................................7
6. Registration Procedures...................................................8
7. Participation of Broker-Dealers in Exchange Offer........................18
8. Registration Expenses....................................................19
9. Indemnification and Contribution.........................................20
10. Rule 144A................................................................24
11. Participation in Underwritten Registrations..............................24
12. Selection of Underwriters................................................24
13. Miscellaneous............................................................25
</TABLE>
<PAGE> 3
This Registration Rights Agreement (this "Agreement") is made
and entered into as of February 8, 2000 between Globix Corporation, a Delaware
corporation (the "Company"), and Lehman Brothers Inc., Chase Securities Inc.,
Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney Inc. and ING Barings LLC, (each, an Initial
Purchaser, and collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated January 28, 2000, among the Company and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of $600,000,000 aggregate principal amount of the Company's
12.50% Senior Notes due 2010 (the "Notes"). Capitalized terms used but not
specifically defined herein have the respective meanings ascribed thereto in the
Purchase Agreement. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company agrees with the Initial Purchasers, and its
direct and indirect transferees, for the benefit of the holders of the Notes
(including the Initial Purchasers) (collectively, the "Holders"), as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Notes were sold to the
Initial Purchasers.
Commission: The Securities and Exchange Commission.
Damages Payment Date: With respect to the Notes, each Interest
Payment Date until the earlier of (i) the date on which Liquidated
Damages no longer are payable or (ii) maturity of the Notes.
Effectiveness Target Date: As defined in Section 5(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Notes to be issued pursuant to the
Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Notes pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted
<PAGE> 4
Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
Exempt Resale: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, and to certain non-U.S. persons in offshore
transactions meeting the requirements of Rule 903 of Regulation S under
the Securities Act.
Holders: As defined in the second paragraph of this Agreement.
Indenture: The Indenture, dated as of the date hereof, between
the Company and HSBC Bank USA, as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture.
Liquidated Damages: As defined in Section 5(a) hereof.
NASD: National Association of Securities Dealers, Inc.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company, government or any agency or
political subdivision thereof or any other entity.
Prospectus: The prospectus included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement and
by all other amendments and supplements thereto, including
post-effective amendments, and all exhibits thereto and all material
incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5(a) hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in either
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments)
<PAGE> 5
and all exhibits and material incorporated by reference therein.
Related Transaction Documents: The Purchase Agreement and the
Indenture, together with all exhibits and schedules thereto.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a)(x) hereof.
Shelf Registration Statement: As defined in Section 4 (a)(x)
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Note, until the earliest
to occur of (a) the date on which such Note has been exchanged by a
person other than a Broker-Dealer for Exchange Notes in the Exchange
Offer, (b) following the exchange by a Broker-Dealer in the Exchange
Offer of such Note for one or more Exchange Notes, the date on which
such Exchange Notes are sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement or (d) the date on which such Note is eligible
to be distributed to the public pursuant to Rule 144 (k) (or any
similar provision then in force) under the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities whenever such Person
owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Exchange Offer Registration Statement. Unless the Exchange
Offer shall not be permissible under applicable law or Commission policy (after
the procedures set forth in Section 6(a) below have been complied with), the
Company shall (i) cause to be filed with the Commission as promptly as
practicable, but in no event later than 60 days after the Closing Date, a
Registration Statement under the Securities Act relating to the Exchange Notes
and the Exchange Offer, (ii) use its reasonable best efforts to cause such
Registration Statement to become effective
<PAGE> 6
within 150 days after the Closing Date, (iii) in connection with the foregoing,
(A) file all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
if applicable, file a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Notes to be made under the "blue sky" laws of such jurisdictions as are
necessary to permit consummation of the Exchange Offer, (iv) use its reasonable
best efforts to cause the Exchange Offer to be consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 180 days after the Closing Date and (v)
deliver the Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Transfer Restricted Securities that were validly
tendered by Holders thereof pursuant to the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the Exchange Notes
to be offered in exchange for the Transfer Restricted Securities and to permit
resales of Exchange Notes held by Broker-Dealers as contemplated by Section 3(c)
below. The time periods referred to in clauses (ii) and (iv) of this Section
3(a) shall not include any period during which the Company is pursuing a
Commission ruling pursuant to Section 6(a)(i) below.
(b) Consummation of the Exchange Offer. The Company shall use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply in all material respects with all applicable
federal and state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Exchange
Offer shall not be subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable interpretation of the
Commission. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right, subject to applicable law and at its own
expense, to contact such Holders and otherwise facilitate the tender of Transfer
Restricted Securities in the Exchange Offer.
(c) "Plan of Distribution" Section of the Prospectus. The
Company shall indicate in a "Plan of Distribution" section contained in the
Prospectus contained in the Exchange Offer Registration Statement that any
Broker-Dealer who holds Notes that are Transfer Restricted Securities and that
were acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities acquired
directly from the Company), may exchange such Notes pursuant to the Exchange
Offer; provided, however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by such Broker-
Dealer in
<PAGE> 7
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker- Dealer
or disclose the amount of Exchange Notes held by any such Broker-Dealer except
to the extent required by the Commission.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary (i) to ensure that it is available for resales of Exchange Notes
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and (ii) to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to time, in each case,
for a period ending on the earlier of (a) 180 days from the date on which the
Exchange Offer Registration Statement is declared effective or (b) such shorter
period as will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon their reasonable
request at any time during the period referred to in the previous paragraph in
order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not permitted to
file the Exchange Offer Registration Statement or to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been compiled with), (ii) any Holder of Transfer Restricted Securities that is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) shall notify the Company at least 30 business days prior to the
consummation of the Exchange Offer (A) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) that such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Notes acquired directly from the Company or
one of its affiliates, (iii) the Exchange Offer is not for any other reason
consummated by August 8, 2000 or (iv) the Exchange Offer has been completed and
in the written opinion of counsel for the Initial Purchasers a Registration
Statement must be filed and a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Transfer Restricted
Securities, then the Company shall in lieu of, or in the event of (ii), (iii)
and (iv) above, in addition to, effecting the registration of the Exchange Notes
pursuant to the Exchange Offer
<PAGE> 8
Registration Statement, use its reasonable best efforts to:
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Securities Act which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), within 60 days of the earliest to occur of
(1) the date on which the Company determines that it is not required to
file the Exchange Offer Registration Statement, (2) the date on which
the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above, (3) August 8, 2000 or
(4) the receipt by the Company of the opinion of counsel contemplated
by clause (iv) above (the 60th day following the earliest to occur of
(1) through (4) being hereinafter referred to as the "Shelf Filing
Deadline"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities for which the Holders of
such Transfer Restricted Securities shall have provided the information
required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 120th day after the Shelf
Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary (i) to ensure that it is available for resales of Notes by the Holders
of Transfer Restricted Securities entitled to the benefit of this Section 4(a),
and (ii) to ensure that such Shelf Registration Statement conforms and continues
to conform with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission, as announced from time to
time, in each case, for a period ending on the earlier of (a) the second
anniversary of the Closing Date and (b) the date on which all Transfer
Restricted Securities covered by such Shelf Registration Statement shall have
been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 10 business days after receipt of a
request therefor, such information as the Company may reasonably request for use
in connection with any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such reasonably requested information within
the time period prescribed in this Section 4(b). For as long as the Company is
required to keep any Shelf Registration Statement effective, each Holder as to
which any such Shelf Registration Statement is being effected agrees to notify
the Company promptly if any of the information previously furnished is
misleading or inaccurate in any material respect and to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such
<PAGE> 9
Holder not materially misleading or inaccurate.
(c) Declaring Effective the Exchange Offer Registration
Statement. An Exchange Offer Registration Statement pursuant to Section 3(a)
hereof or a Shelf Registration Statement pursuant to Section 4(a) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; provided, however, that if, after it has been declared
effective, the offering of Transfer Restricted Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Transfer Restricted
Securities pursuant to such Registration Statement may legally resume.
(d) Failure of the Company to Comply with its Obligations.
Without limiting the remedies available to the Initial Purchasers and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 3(a) and Section 4(a) hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 3(a) and Section
4(a) hereof.
5. Liquidated Damages.
(a) Accrual and Amount of Liquidated Damages. If (i) the
Exchange Offer Registration Statement or Shelf Registration Statement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any of such Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness as set forth in Section 3(a)(ii) and 4(a)(y) of this Agreement
(the "Effectiveness Target Date"), (iii) the Exchange Offer has not been
consummated within 180 days after the Closing Date with respect to the Exchange
Offer Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within five business days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective within
such five business day period (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then additional cash interest
("Liquidated Damages") shall accrue to each Holder of the Notes commencing upon
the occurrence of such Registration Default in an amount equal to .50% per annum
of the principal amount of Notes held by such Holder. The amount of Liquidated
Damages will increase by an additional .50% per annum of the principal amount of
Notes with respect to each subsequent 90-day period (or portion thereof) until
all Registration Defaults have been cured, up to a maximum rate of Liquidated
Damages of 1.50% per annum of the principal amount of Notes. All accrued
Liquidated Damages shall be paid to Holders by the Company in the same manner as
<PAGE> 10
interest is paid pursuant to the Indenture. Immediately upon the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that have accrued and are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in full.
(b) Notification of the Trustee. The Company shall notify the
Trustee within one business day after each and every date on which an event
occurs in respect of which Liquidated Damages are required to be paid (an "Event
Date"). Liquidated Damages shall be paid by depositing Liquidated Damages with
the Trustee, in trust, for the benefit of the Holders of the Notes, on or before
the applicable Interest Payment Date (whether or not any payment other than
Liquidated Damages is payable on such Notes), in immediately available funds in
sums sufficient to pay the Liquidated Damages then due to such Holders. Each
obligation to pay Liquidated Damages shall be deemed to accrue from the
applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall comply with all of the provisions of
Section 6(c) below and shall use its reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof. In
addition, the Company (with respect to (i) and (iii) of this Section 6(a)) and
each Holder of Transfer Restricted Securities (with respect to (ii) of this
Section 6(a)) shall comply with the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company to
consummate an Exchange Offer for such Notes. The Company hereby agrees
to pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. The Company hereby agrees,
however, to (A) participate in telephonic conferences with the staff of
the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) use reasonable best efforts pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to
<PAGE> 11
the terms of this Agreement, each Holder of Transfer Restricted
Securities shall (x) furnish, upon the request of the Company, prior to
the consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it is
not an "affiliate" of the Company as defined in Rule 405 of the
Securities Act, (B) it is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in
the Exchange Offer and (C) it is acquiring the Exchange Notes in its
ordinary course of business and (y) otherwise cooperate in the
Company's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Morgan Stanley and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including Brown & Wood LLP (available February 7, 1997), and any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
(iii) Prior to the effectiveness of the Exchange Offer
Registration Statement, to the extent required by the Commission, the
Company shall provide a supplemental letter to the Commission (A)
stating that the Company is registering the Exchange Offer in reliance
on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991), Brown & Wood LLP (available February 7, 1997)
and, if applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the Company has not
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that to the best of the Company's information and belief, each Holder
(other than an Initial Purchaser) participating in the Exchange Offer
is acquiring the Exchange Notes in its ordinary course of business and
has no arrangement or understanding with any Person to participate in
the distribution of the Exchange Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section
<PAGE> 12
6(c) below and shall use its reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company shall as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to (x) keep such
Registration Statement continuously effective and (y) provide all
requisite financial statements for the period specified in Section 3 or
4(a) of this Agreement, as applicable; upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or
(B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use its
reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4(a) hereof, as applicable,
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration Statement and for so
long as the Company is required to keep such Shelf Registration
Statement effective, advise the underwriter(s), if any, and selling
Holders promptly and, if requested by any
<PAGE> 13
underwriter(s) or selling Holders to confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission or any state
securities authority for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) if, between
the effective date of a Registration Statement and the closing of any
sale of Transfer Restricted Securities covered thereby, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects, (E) of the existence of any fact or
the happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the
statements therein not misleading and (F) of any determination by the
Company that a post-effective amendment to a Registration Statement
would be appropriate. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time and shall provide prompt notice to each of the
selling or exchanging Holders of the withdrawal of any such order;
(iv) in the case of a Shelf Registration Statement, furnish to
each of the selling or exchanging Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of five business days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which selling Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five business
days after the
<PAGE> 14
receipt thereof. A selling Holder or underwriter, if any, shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration Statement, promptly
prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the underwriter(s), if
any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request,
provided that such Holders agree to use any information received
pursuant to this clause in accordance with all applicable federal
securities laws;
(vi) in the case of a Shelf Registration Statement, subject to
execution of a confidentiality agreement reasonably acceptable to the
Company, make available at reasonable times for inspection by a
representative of the selling Holders, any underwriter participating in
any disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's
officers, directors, managers and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement subsequent to
the filing thereof and prior to its effectiveness;
(vii) in the case of a Shelf Registration Statement, if
requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) in the case of a Shelf Registration Statement, upon
request, furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one conformed copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated
<PAGE> 15
therein by reference);
(ix) in the case of a Shelf Registration Statement, deliver to
each selling Holder and each of the underwriter(s), if any, without
charge, as many conformed copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use
of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) in the case of a Shelf Registration Statement, enter into
such agreements (including an underwriting agreement in a form
customary for similar transactions), and make such representations and
warranties, and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably
requested by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the Company shall:
(A) upon request, furnish to each selling Holder and
each underwriter, if any, in such substance and scope as they
may request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date
of the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement,
signed by (y) the Chairman of the Board, its Chief
Executive Officer, its President or a Vice President
and (z) the Chief Financial Officer of the Company,
confirming, as of the date thereof, such customary
matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Company, covering such customary
matters as such parties may reasonably request, and
in any event including a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, the Initial Purchasers'
representatives and the Initial Purchasers' counsel
in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required
<PAGE> 16
to be stated therein and the statements contained
therein, although such counsel has not independently
verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that,
on the basis of the foregoing, no facts came to such
counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
included in such Registration Statement as of its
date, contained an untrue statement of a material
fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the
date of the effectiveness of the Shelf Registration
Statement from the Company's independent accountants
and from the independent accountants of other Persons
whose financial statements are included in the Shelf
Registration Statement, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings.
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 9 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(x), if any.
If at any time the representations and warranties of the Company contemplated in
clause (A)(1) above cease to be true and correct, the Company shall so advise
the Initial Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in writing
delivered to such Persons;
<PAGE> 17
(xi) in the case of a Shelf Registration Statement, prior to
any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s), if any,
may reasonably request and do any and all other acts or things as may
be reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that the Company shall
not be required to register or qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) in the case of an Exchange Offer Registration Statement,
shall issue, upon the request of any Holder of Notes covered by the
Exchange Offer Registration Statement, Exchange Notes in the same
amount as the Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Exchange Notes, as the case may be; in return, the
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) in the case of a Shelf Registration Statement,
cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the
underwriter(s), if any, may reasonably request at least two business
days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xv) if any fact or event contemplated by clause (c)(iii)(E)
of this Section 6 shall exist or have occurred, prepare and file with
the Commission a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, such Prospectus will not contain an untrue
statement of a
<PAGE> 18
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(xvi) provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide certificates for the Transfer Restricted
Securities;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities; provided, however,
that the Company shall not be required to register or qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xviii) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to the Holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or reasonable best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
reasonable best efforts to cause the Trustee to execute all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon reasonable request
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
<PAGE> 19
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(c)(iii)(E) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xv)
hereof, or until such Holder is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4(a)
hereof, as applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section
6(c)(iii)(E) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or
shall have received the Advice.
<PAGE> 20
7. Participation of Broker-Dealers in Exchange Offer.
(a) Participating Broker-Dealer May Be Deemed an
"Underwriter". The Commission has taken the position that any Broker-Dealer that
receives Exchange Notes for its own account in the Exchange Offer in exchange
for Notes that were acquired by such Broker- Dealer as a result of market-making
or other trading activities (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes.
The Company understands that it is the Commission's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a "Plan of Distribution" containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating Broker-Dealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) Provisions Regarding Shelf Registration Statement to Apply
to Exchange Offer Registration. In light of the above, notwithstanding the other
provisions of this Agreement, the Company agrees that the provisions of this
Agreement as they relate to a Shelf Registration Statement shall also apply to
an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto, as may be reasonably requested by the Initial Purchasers
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Notes by Participating Broker-Dealers consistent with the positions of
the Commission recited in Section 7(a) above; provided, however, that:
(i) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement,
as would otherwise be contemplated by Section 6(c)(xv), for a period
exceeding 180 days after the last date of acceptance for exchange (as
such period may be extended pursuant to the last paragraph of Section 6
of this Agreement) and Participating Broker-Dealers shall not be
authorized by the Company to deliver and shall not deliver such
Prospectus after such period in connection with the resales
contemplated by this Section 7; and
(ii) the application of the Shelf Registration Statement
procedures set forth in Section 4 of this Agreement to an Exchange
Offer Registration, to the extent not required by the positions of the
Commission or the Securities Act and the rules and regulations
thereunder, will be in conformity with the reasonable request to the
Company by the Initial Purchasers or with the reasonable request in
writing to the Company by one or more broker-dealers who certify to the
Initial
<PAGE> 21
Purchasers and the Company in writing that they anticipate that they
will be Participating Broker-Dealers;
provided further that, in connection with such application of the Shelf
Registration Statement procedures set forth in Section 4 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be Lehman Brothers
Inc. unless it elects not to act as such representative, in which case such
entity shall be selected by a majority of the Participating Broker-Dealers, (y)
to pay the fees and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel selected by the Lehman Brothers Inc. and
reasonably acceptable to the Company (unless such counsel elects not to so act),
and (z) to cause to be delivered only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last date of acceptance
for exchange and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (i) above.
(c) Liability of the Initial Purchasers. The Initial
Purchasers shall have no liability to the Company or any Holder with respect to
any request that the Initial Purchasers may make pursuant to Section 7(b) above.
8. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter") and its
counsel that may be required by the rules and regulations of the NASD); (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telecommunications usage; (iv) all fees and disbursements of counsel for the
Company and, subject to Section 8(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing Notes
on a national securities exchange or automated quotation system; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and other Persons whose financial statements are included in a
Registration Statement (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by
this
<PAGE> 22
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
counsel selected by Lehman Brothers Inc. and reasonably acceptable to the
Company (unless such counsel elects not to so act). The Company shall not be
required to pay any underwriting discount, commission or similar fee related to
the sale of any securities.
9. Indemnification and Contribution.
(a) The Company to Indemnify Holders. In connection with a
Shelf Registration Statement or in connection with any delivery of a Prospectus
contained in an Exchange Offer Registration Statement by any Participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to sell Exchange
Notes, the Company shall indemnify and hold harmless each Holder of Transfer
Restricted Securities included within any such Shelf Registration Statement and
each Participating Broker-Dealer or Initial Purchaser selling Exchange Notes
(each, a "Participant"), such Participant's officers, employees and directors
and each person, if any, who controls any Participant within the meaning of
Section 15 of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Notes), to which such Participant, officer, employee,
director or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) any preliminary Prospectus, Registration
Statement or Prospectus or in any amendment or supplement thereto or (B) any
blue sky application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) specifically for
the purpose of qualifying any or all of the Exchange Notes under the securities
laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), or (ii) the
omission or alleged omission to state in any (x) preliminary Prospectus or
Prospectus or in any amendment or supplement thereto, any material fact required
to be stated therein or necessary to make the statements therein not misleading,
in light of the circumstances in which they were made, and (y) Registration
Statement or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Participant and
each such officer, employee, director or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Participant,
officer, employee, director or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not
<PAGE> 23
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
Prospectus, Prospectus or Registration Statement, in any amendment or supplement
thereto, or in any Blue Sky Application, in reliance upon and in conformity with
written information concerning such Participant furnished to the Company by or
on behalf of any Participant specifically for inclusion therein; provided
further that as to any preliminary Prospectus, this indemnity agreement shall
not inure to the benefit of any Participant or any officer, employee, director
or controlling person of that Participant on account of any loss, claim, damage,
liability or action arising from the sale of the Exchange Notes or any Notes
sold pursuant to a Shelf Registration Statement to any person by such
Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus or
a supplement or amendment thereto, as the case may be, unless in each case, such
failure resulted from noncompliance by the Company with Section 6(c). The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Participant or to any officer, employee, director or
controlling person of that Participant. In connection with any Underwritten
Offering permitted by Section 6(c) hereof, the Company will also indemnify the
underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers, employees and
directors and each Person who controls such Persons (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with
any Registration Statement.
(b) Participants to Indemnify the Company and its Directors,
Officers and Controlling Persons. Each Participant, severally and not jointly,
shall indemnify and hold harmless the Company, its directors, employees and
officers, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, employee, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in (A) any
preliminary Prospectus, Registration Statement or Prospectus or in any amendment
or supplement thereto or (B) any Blue Sky Application or (ii) the omission or
alleged omission to state in any (x) preliminary Prospectus or Prospectus or in
any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and (y) Registration
Statement or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading but in the case of clauses (i) and (ii)
only to the extent that the untrue statement or alleged untrue statement or
<PAGE> 24
omission or alleged omission was made in reliance upon and in conformity with
the written information concerning such Participant furnished to the Company by
or on behalf of that Participant specifically for inclusion therein, and shall
reimburse the Company and any such director, employee, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, employee, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company or any such director, employee, officer or
controlling person.
(c) Notification of Indemnifying Party; Counsel; Settlement.
Promptly after receipt by an indemnified party under this Section 9 of notice of
any claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have
under this Section 9 except to the extent the indemnifying party has been
materially prejudiced by such failure and provided further that the failure to
notify the indemnifying party shall not affect any liability which it may have
to an indemnified party otherwise than under this Section 9. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and its respective directors, employees, officers
and controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the indemnified party against the
indemnifying party under this Section 9 if such indemnified party shall have
been advised in writing that the representation of such indemnified party and
those directors, employees, officers and controlling persons by the same counsel
would be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, and in that event the fees
and expenses of such separate counsel shall be paid by the indemnifying party.
It is understood that the indemnifying party shall not be liable for the fees
and expenses of more than one separate firm (in addition to local counsel in
each jurisdiction) for all indemnified parties in connection with any proceeding
or related proceedings. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 9(a) and 9(b), shall use its reasonable best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of
<PAGE> 25
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment in accordance with this
Section 9. Notwithstanding the foregoing, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance such request prior to the date of such
settlement.
(d) Indemnification Unavailable. If the indemnification
provided for in this Section 9 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and the Participants, on the
other hand, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the
Participants, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each of the Company and the Participants agrees that it
would not be just and equitable if contributions pursuant to this Section 9(d)
were to be determined by pro rata allocation (even if either the Participants or
the Company, as the case may be, were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 9(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
<PAGE> 26
of this Section 9(d), no Participant shall be required to indemnify or
contribute any amount in excess of the amount by which proceeds received by the
Participants from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity. The Participants' obligations to contribute as provided in this Section
9(d) are several and not joint.
(e) The indemnity and contribution provisions contained in
this Section 9 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser, any Holder or any person controlling any
Initial Purchaser or any Holder, or by or on behalf of the Company, its officers
or directors or any person controlling the Company, (iii) acceptance of any of
the Exchange Notes and (iv) any sale of Transfer Restricted Securities pursuant
to a Shelf Registration Statement.
10. Rule 144A.
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
11. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, lockup letters and other documents reasonably required
under the terms of such underwriting arrangements. In no event shall an
Underwritten Registration be commenced if a period of less than 180 days has
elapsed since the consummation of the most recent Underwritten Registration
hereunder, without the consent of the Company (which shall not be unreasonably
withheld).
12. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf
<PAGE> 27
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
13. Miscellaneous.
(a) Remedies. The Company agrees that monetary damages
(including Liquidated Damages) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under the provisions of any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take
any action, or permit any change to occur, with respect to Notes that would
materially and adversely affect the ability of the Holders to consummate any
Exchange Offer unless such action or change is required by applicable law.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given unless the Company has obtained the written consent of
Holders of at least a majority of the outstanding principal amount of Transfer
Restricted Securities; provided, however, that no amendment, modification,
supplement, waiver or consent to or departure from the provisions of Section 9
hereof shall be effective as against any Holder of Transfer Restricted
Securities unless consented to in writing by such Holder. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail (registered or certified, return receipt requested), telecopier, or air
courier guaranteeing
<PAGE> 28
overnight delivery:
(i) if to a Holder, at the address of such Holder maintained
by the Registrar under the Indenture; and
(ii) if to the Company:
139 Centre Street
New York, New York 10013
Attention: President
Facsimile: (212) 334-8509
With a copy to:
Milberg Weiss
Bershad Hynes & Lerach LLP
One Pennsylvania Plaza
New York, New York 10119
Attention: Arnold N. Bressler, Esq.
Facsimile: (212) 868-1229
(iii) if to the Initial Purchasers:
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Syndicate Department
Facsimile: (212) 528-6395.
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Andrew Keller, Esq.
Facsimile: (212) 455-2502
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery. All notice
information may be changed upon notice to the other parties hereto given in
accordance with the provisions of this Section 13(a).
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address
<PAGE> 29
specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation, and without the need for an
express assignment, subsequent Holders of Transfer Restricted Securities;
provided, however, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms of the Purchase Agreement; provided further that this Agreement shall
not inure to the benefit of or be binding upon a successor, transferee or assign
of a Holder unless and to the extent such successor, transferee or assign
acquired Transfer Restricted Securities from such Holder. If any transferee of
any Holder shall acquire Transfer Restricted Securities, in any manner, whether
by operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Transfer Restricted Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Company with respect to any failure by a Holder
to comply with, or breach by any Holder of, any of the obligations of such
Holder under this Agreement.
(g) Purchases and Sales of Notes. The Company shall not, and
shall use its reasonable best efforts to cause its affiliates (as defined in
Rule 405 under the Securities Act) not to, purchase and then resell or otherwise
transfer any Notes.
(h) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and such Initial Purchasers
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(i) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(l) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal
<PAGE> 30
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(m) Entire Agreement. This Agreement, together with each of
the Related Transaction Documents, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(n) Required Consents. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
<PAGE> 31
IN WITNESS WHEREOF, the parties shave executed this Agreement
as of the date first written above.
GLOBIX CORPORATION
By:______________________________
Name:
Title:
Accepted, February 8, 2000
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
ING BARINGS LLC
Acting severally on behalf of themselves and the other Initial Purchasers named
in Schedule I to the Purchase Agreement.
By: LEHMAN BROTHERS INC.
By:_____________________________
Authorized Representative
<PAGE> 1
Exhibit 4.4
- --------------------------------------------------------------------------------
GLOBIX CORPORATION
(FORMERLY KNOWN AS BELL TECHNOLOGY GROUP LTD.),
AS ISSUER,
AND
HSBC BANK USA
(FORMERLY KNOWN AS MARINE MIDLAND BANK),
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 4, 2000
Supplementing the Indenture, dated as of April 30, 1998, between Bell
Technology Group Ltd., as Issuer, and Marine Midland Bank, as
trustee, relating to the 13% Senior Notes due 2005
of Bell Technology Group Ltd.
- --------------------------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 4 , 2000
(this "First Supplemental Indenture"), to the Indenture, dated as of April 30,
1998 (as amended, modified or supplemented from time to time in accordance
therewith, the "Indenture"), between Globix Corporation Bell Technology Group
Ltd. (the "Company"), a Delaware corporation (formerly known as Bell Technology
Group Ltd.), and HSBC Bank USA, a New York banking corporation and trust company
(formerly known as Marine Midland Bank), as trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to
the Trustee the Indenture providing for, among other things, the creation and
issuance by the Company of its 13% Senior Notes due 2005 (the "Securities");
and
WHEREAS, Section 902 of the Indenture provides that the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may amend or supplement the Indenture or the Securities without notice
to any securityholder but with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities, subject to certain
exceptions specified in Section 902 of the Indenture; and
WHEREAS, the Company has offered, and proposes to issue and
sell, $600,000,000 aggregate principal amount of its 12 1/2% Senior Notes due
2010 (the "New Senior Notes"); and
WHEREAS, in connection with the offering and proposed issuance
and sale of the New Senior Notes the Company has received the consent of the
Holders of at least a majority of the aggregate principal amount of the
outstanding Securities to the amendment of the Indenture as herein provided; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been duly authorized by a resolution of the Company's Board of
Directors; and
WHEREAS, all conditions and requirements necessary to make
this First Supplemental Indenture a valid, binding and legal instrument
enforceable in accordance with its terms have been performed and fulfilled by
the parties hereto and the execution and delivery thereof have been in all
respects duly authorized by the parties hereto,
1
<PAGE> 3
NOW, THEREFORE, for and in consideration of the foregoing
premises, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities, as follows:
SECTION 1. Definitions. For all purposes of the Indenture and
this First Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(a) "herein," "hereof" and other words of similar import
refer to the Indenture and this First Supplemental Indenture as a whole and not
to any particular article, section or other subdivision; and
(b) all capitalized terms used in this First Supplemental
Indenture but not defined herein shall have the meanings assigned to such terms
in the Indenture.
SECTION 2. Elimination and Amendment of Certain Defined Terms
in Article 1 of the Indenture. Any defined terms appearing in Article 1 of the
Indenture or elsewhere in the Indenture, and all references thereto, that are
used solely in the sections, subsections or provisions of the Indenture deleted
from the Indenture by virtue of the operation of Sections 3, 4 and 5 of this
First Supple mental Indenture are hereby deleted in their entireties from
Section 101 of the Indenture.
SECTION 3. Amendment of Article 8 of the Indenture. Article 8
to the Indenture is hereby amended by deleting therefrom clauses (iii), (v) and
(vi) of Section 801(a).
SECTION 4. Elimination of Certain Provisions of Article 10 of
the Indenture. Sections 1008, 1009, 1010, 1011, 1013, 1015, 1016, 1017, 1018,
1019 and 1022 of the Indenture are hereby deleted in their entireties, together
with any references thereto in the Indenture.
SECTION 5. Operation of Supplemental Indenture. This First
Supplemental Indenture will become effective upon execution by the parties
hereto; provided however, that this First Supplemental Indenture shall be deemed
null and void as of the date hereof and shall be of no further force and effect
with respect to the Indenture, and the provisions of the Indenture modified or
eliminated by virtue of this First Supplemental Indenture shall be immediately
reinstated, if (a) on or prior to February 10, 2000 the Company does not
commence a cash tender offer to purchase any and all of the Securities at a
purchase price of 106.5% of their principal amount, plus accrued and unpaid
interest to the date of purchase (the "Tender Offer"), or if
2
<PAGE> 4
the Company, having commenced the Tender Offer, subsequently withdraws such
Tender Offer, or (b) if the Company, having commenced the Tender Offer, fails
to purchase, by accepting for payment, all Securities that are validly tendered
(and not withdrawn) pursuant to the terms and conditions set forth in the
Company's Offer to Purchase and the related Consent and Letter of Transmittal
prepared in connection with the Tender Offer (in each case, as the same may be
amended, modified or supplemented from time to time in accordance therewith).
SECTION 6. Concerning the Trustee. The Trustee accepts the
trusts of the Indenture, as supplemented by this First Supplemental Indenture,
and agrees to perform the same, but only upon the terms and conditions set forth
in the Indenture, as supplemented by this First Supplemental Indenture, to which
the parties hereto and the Holders from time to time of the Securities agree
and, except as expressly set forth in the Indenture, shall incur no liability or
responsibility in respect thereof. Without limiting the generality of the
foregoing, the recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness, and
the Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture or any consents thereto.
SECTION 7. Ratification and Confirmation of Indenture. Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
SECTION 8. Miscellaneous.
(a) All agreements of the Company in this First Supplemental
Indenture shall bind the Company's successors. All agreements of the Trustee in
this First Supplemental Indenture shall bind its successors.
(b) This First Supplemental Indenture shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of the State of New
York.
(c) If and to the extent that any provision of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310-317 of the TIA by operation of Section 318(c) of the TIA, the
imposed duties shall control.
(d) The titles and headings of the sections of this First
Supplemental Indenture have been inserted for convenience of reference only, are
not to be consid-
3
<PAGE> 5
ered a part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
(e) This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but such counterparts shall constitute but one and the same agreement.
(f) In case any provision of this First Supplemental Indenture
shall be determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof or of the
Indenture shall not in any way be affected or impaired thereby.
(g) This First Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
4
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Trustee have caused
this First Supplemental Indenture to be duly executed by their respective
officers thereunto duly authorized and their respective corporate seals, duly
attested, to be hereunto affixed all as of the day and the year first above
written.
GLOBIX CORPORATION,
as Issuer
[Seal] By:
-------------------------------
Name:
Title:
Attest:
- ------------------------
HSBC BANK USA,
as Trustee
[Seal] By:
-------------------------------
Name:
Title:
Attest:
- ------------------------
<PAGE> 7
STATE OF )
ss.:
COUNTY OF )
On the _______ day of February 2000, before me personally
came_______, to me known, who, being duly sworn, did depose and say that he is
the _________ of GLOBIX CORPORATION one of the corporations described in and
which executed the foregoing instrument; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by the authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
---------------------------
Notary Public
STATE OF )
ss.:
COUNTY OF )
On the ______ day of February 2000, before me personally came
____________, to me known, who, being duly sworn, did depose and say that he is
the _______________ of HSBC Bank USA, the banking corporation and trust company
described in and which executed the foregoing instrument; that he knows the seal
of said banking corporation and trust company; that the seal affixed to said
instrument is such banking corporation and trust company seal; that it was so
affixed by the authority of the Board of Directors of said banking corporation
and trust company; and that he signed his name thereto by like authority.
---------------------
Notary Public
<PAGE> 1
Exhibit 4.5
LEHMAN BROTHERS
OFFER TO PURCHASE FOR CASH BY
GLOBIX CORPORATION
ANY AND ALL OF ITS OUTSTANDING
13% SENIOR NOTES DUE 2005
February 8, 2000
Dear Holder,
We understand that you may beneficially own certain of the 13% Senior
Notes due 2005 (the "Notes") of Globix Corporation, a Delaware corporation (the
"Company"). As more fully described below, the Company is offering to purchase,
for cash (the "Offer"), any and all of these outstanding Notes through a tender
offer that commences at 9:00 a.m., New York City time, on Tuesday, February 8,
2000 and expires at 5:00 p.m., New York City time, on Tuesday, March 7, 2000,
unless otherwise extended by the Company (the "Tender Period"). Lehman Brothers
Inc. ("Lehman Brothers") is the exclusive dealer-manager in connection with the
Offer.
1. THE OFFER TO PURCHASE. The Company hereby offers to purchase,
commencing at 9:00 a.m., New York City time, on Tuesday, February 8, 2000, any
and all of the Notes at a purchase price of 106.5% of the aggregate principal
amount, plus accrued and unpaid interest on the principal amount up to, but not
including, the Settlement Date (the "Purchase Price"). The "Settlement Date" in
respect of any tendered Notes will be the third New York City business day
following the date on which the registered holder of the Notes (a "Holder")
tenders such Notes and the same are accepted for purchase in accordance with the
Offer (the "Tender Date"). Tenders will be accepted after 9:00 a.m. and before
5:00 p.m., New York City time, on any New York City business day during the
Tender Period, and at such other times during the Tender Period as determined by
Lehman Brothers.
2. EXPIRATION OF OFFER; PAYMENT FOR NOTES. The Offer will expire at
5:00 p.m., New York City time, on Tuesday, March 7, 2000, unless extended as
provided herein by the Company (such date or the latest date to which the Offer
is extended being the "Expiration Date"). The Company expressly reserves the
right to extend the Offer on a daily basis or from time to time for such period
or periods as the Company may determine in its sole discretion from time to time
by making a public announcement by press release to the Dow Jones News
Service prior to 9:00 a.m., New York City time, on any date not later than the
next business day following the previously scheduled Expiration Date.
<PAGE> 2
Payment for any Notes purchased pursuant to the Offer will be made on
the applicable Settlement Date, which will be the third New York City business
day following the Tender Date in accordance with the procedures set forth below.
Payment for Notes purchased pursuant to the Offer will be made in immediately
available funds.
3. NO RECOMMENDATION. NEITHER THE COMPANY NOR LEHMAN BROTHERS MAKES ANY
RECOMMENDATION AS TO WHETHER ANY HOLDER SHOULD TENDER OR REFRAIN FROM TENDERING
ALL OR ANY PORTION OF SUCH HOLDER'S NOTES, AND NO ONE HAS BEEN AUTHORIZED BY
EITHER OF THEM TO MAKE ANY SUCH RECOMMENDATION. HOLDER'S MUST MAKE THEIR OWN
DECISION AS TO WHETHER TO TENDER NOTES, AND IF SO, THE PRINCIPAL AMOUNT OF NOTES
TO TENDER.
4. THE NOTES. As of the date of this Offer to Purchase, $160 million in
principal amount of Notes were outstanding. The Notes were issued pursuant to
the Original Indenture (as defined below), to which reference is made for a
complete description of the terms of the Notes. The Notes are issued in global
form, and are registered in the name of Cede & Co., the nominee of The
Depository Trust Company.
5. AMENDMENTS TO THE TERMS OF THE NOTES. In connection with this Offer,
and pursuant to Section 902 of the indenture, dated April 30, 1998, that governs
the Notes (the "Original Indenture"), the Company solicited and received the
consents of the beneficial and record owners of a majority in aggregate
principal amount of the outstanding Notes to amend the Original Indenture and
remove certain restrictive covenants (the "Amendments"). The Company and HSBC
Bank USA, as the trustee, have executed a supplemental indenture, dated February
4, 2000 (the "Supplemental Indenture" and together with the Original Indenture,
the "Indenture"), that incorporates these Amendments. However, the Supplemental
Indenture, by its terms, shall be deemed null and void, and the provisions of
the Original Indenture modified or eliminated by the Supplemental Indenture
shall be immediately reinstated, if the Company fails to purchase, by accepting
for payment, any and all of the Notes that are validly tendered pursuant to the
Offer.
THE SUPPLEMENTAL INDENTURE IS BINDING ON ALL NON-TENDERING HOLDERS. See
Sections 8, 9 and 10 for discussions of certain factors that you should consider
in evaluating the Offer.
The summary of the Amendments to the Original Indenture set forth below
is qualified in its entirety by reference to the full and complete terms
contained in the Supplemental Indenture. Holders may obtain copies of the
Supplemental Indenture without charge from the Company. Capitalized terms used
in this section, but not defined herein, shall have the meanings given thereto
in the Indenture.
The Amendments to the Original Indenture are as follows:
Restrictive Covenants. The Amendments deleted in their entireties the
following restrictive covenants and any references thereto from the Indenture.
2
<PAGE> 3
Section 1008 - Limitation on Indebtedness. Restricted the ability of
the Company or its Subsidiaries to incur additional
Indebtedness.
Section 1009 - Limitation on Restricted Payments. Restricted the
ability of the Company and its Subsidiaries to make
Restricted Payments, including (i) dividends or payments
in respect of stock or (ii) retirement or other payments
of obligations subordinated to the Notes prior to the
scheduled maturity or scheduled repayment of principal.
Section 1010 - Limitation on Transactions with Affiliates. Restricted
the ability of the Company and its Subsidiaries to
engage in transactions with Affiliates.
Section 1011 - Limitation on Liens. Restricted the Company and its
Subsidiaries from incurring any liens on their property
and assets.
Section 1013 - Limitations on Issuances of Guarantees of Indebtedness.
Restricted the ability of Subsidiaries to Guarantee
Indebtedness.
Section 1015 - Limitation on Sale and Leaseback Transactions.
Restricted the Company and its Subsidiaries from
entering into any sale and leaseback transactions.
Section 1016 - Limitations on Subsidiary Capital Stock. Restricted the
ability of Subsidiaries to issue Capital Stock, and the
ability of any Person to acquire Capital Stock of any
Subsidiary from the Company or any Subsidiary.
Section 1017 - Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. Restricted the Company and its
Subsidiaries from creating or permitting any
restrictions which would prevent such Subsidiaries,
among other things, from paying dividends, making loans
or advances or transferring property or assets to the
Company or any other such Subsidiary.
Section 1018 - Limitations on Unrestricted Subsidiaries. Restricted the
ability of the Company and its Subsidiaries from making
investments in, or creating, Unrestricted Subsidiaries.
Section 1019 - Provision of Financial Statements. Required the Company
to adhere to certain reporting requirements whether or
not they are subject to Sections 13(a) and 15(d) of the
Exchange Act.
3
<PAGE> 4
Section 1022 - Limitation on Business. Restricted the Company from
engaging in any business which is not substantially an
Internet Service Business.
Article 8. The Amendments also modified Article 8 of the Indenture,
which relates to any sale, assignment, conveyance, transfer or disposition of
all or substantially all of the properties and assets of the Company. In
particular, the Amendments deleted the requirements in Section 801(a) that, as a
condition to any such transaction, the Company:
- must be able to incur certain additional indebtedness;
- must be able to satisfy certain limitations on liens;
and
- must not impair any authorization or consent that
would have a material adverse affect on the Company's
business, financial condition or results of operations.
Definitions. The Amendments also deleted all definitions from the
Original Indenture that relate solely to the above-mentioned sections of the
Original Indenture because any references to such defined terms would be
eliminated by the Amendments or because they otherwise would not be used.
6. PURPOSE OF THE OFFER. The purpose of the Offer is to acquire all
outstanding Notes in accordance with the arrangement reached between the Company
and the beneficial owners of a majority of the outstanding principal amount of
the Notes as consideration for the consents to amend the Original Indenture in
accordance with the Supplemental Indenture. There was no additional
consideration for the consents provided in connection with the execution of the
Supplemental Indenture.
From time to time in the future, the Company or its affiliates may
acquire Notes, if any, which remain outstanding following consummation of the
Offer through open market purchases, privately negotiated transactions, tender
offers, exchange offers or otherwise, upon such terms and at such prices as it
may determine, which may be more or less than the price to be paid pursuant to
the Offer and could be for cash or other consideration. Alternatively, pursuant
to the provisions of the Notes and the Indenture, the Company may choose to
redeem or contractually defease the Notes. There can be no assurance as to
which, if any, of these alternatives (or combinations thereof) the Company will
pursue.
7. SOURCE AND AMOUNT OF FUNDS. The Company will finance the aggregate
Purchase Price of all Notes validly tendered in the Offer through the receipt of
funds from its $600 million offering of 12.5% Senior Notes due 2010, which
closed on February 8, 2000.
8. CERTAIN MATTERS RELATED TO THE OFFER. Notes purchased pursuant to
the Offer will be delivered to the Trustee for cancellation. The purchase of
Notes pursuant to the Offer will reduce the aggregate principal amount of Notes
that otherwise might trade publicly, which would adversely affect the liquidity,
market value and price volatility of the remaining Notes held by the public. To
the extent a market continues to exist for any remaining Notes after the
4
<PAGE> 5
consummation of the Offer, the Notes may trade at a discount compared to present
trading prices depending on prevailing interest rates, the market for securities
with similar credit features, the performance of the Company and other factors,
including the elimination of the restrictive covenants in the Original
Indenture. There is no assurance that an active market in the Notes will exist
and no assurance as to the price at which the Notes may trade following the
Offer. To the Company's knowledge, the Notes are traded infrequently in
transactions arranged through brokers and no reliable pricing information for
the Notes is available. Holders of Notes are urged to contact their brokers to
obtain the best available information as to the current market prices.
Notes not purchased pursuant to the Offer will remain outstanding. The
Amendments eliminate (or, in certain cases, amend) a substantial number of the
restrictive covenants contained in the Indenture with respect to any Notes that
remain outstanding after the Expiration Date and non-tendering Holders thereof
will no longer be entitled to the benefit of (or, in the case of amendments, the
same benefit under) such provisions. The elimination (or, in certain cases,
amendment) of these restrictive covenants may permit the Company to take actions
that could increase the credit risks with respect to the Company faced by
Holders, adversely affect the market price of the remaining Notes or otherwise
be adverse to the interest of Holders.
9. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The following is a general
summary of certain federal income tax consequences of the adoption of the
Amendments and the sale of Notes to the Company pursuant to the Offer. The
summary does not address the federal income tax consequences to all categories
of Holders, and certain Holders (including insurance companies, partnerships,
tax-exempt organizations, financial institutions, brokers, dealers, nonresident
aliens, foreign corporations, and foreign estates and trusts) might be subject
to special rules not discussed below. This discussion is directed to Holders
which are United States persons and hold the Notes as capital assets. The
summary does not discuss federal tax consequences other than income tax
consequences, and does not discuss foreign, state or local income or other tax
laws. This summary is based upon current provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), applicable Treasury Regulations promulgated
thereunder, judicial authority and current Internal Revenue Service ("IRS")
rulings and practice, all of which are subject to change, possibly on a
retroactive basis.
EACH HOLDER IS URGED TO CONSULT ITS ADVISOR REGARDING THE FEDERAL,
STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF TENDERING THE NOTES PURSUANT
TO THE OFFER, OR RETAINING THE NOTES, IN LIGHT OF SUCH HOLDER'S PARTICULAR
CIRCUMSTANCES.
Adoption of the Amendments. Although there is no authority directly on
point, Holders should not recognize any income, gain or loss for federal income
tax purposes as a result of the adoption of the Amendments. The IRS could
assert, however, that as a result of the adoption of the Amendments, Holders
exchanged, within the meaning of Section 1001 of the Code, their Notes for "new"
Notes (the "New Notes"). If the IRS successfully asserts that Holders exchanged
their Notes for New Notes, the deemed exchange should qualify as a
recapitalization for federal income tax purposes, and, as a result, Holders
would generally not recognize gain
5
<PAGE> 6
or loss as a result of the deemed exchange. If a deemed exchange of the Notes
for New Notes were not treated as a recapitalization, subject to the market
discount rules discussed below, Holders would recognize gain or loss on such
deemed exchange equal to the difference between the fair market value of the New
Notes on the date of the deemed exchange and such Holder's adjusted tax basis in
the Notes, and Holders would have a new holding period for the Notes.
Sale of Notes Pursuant to the Offer. In general, a Holder who receives
cash in exchange for Notes pursuant to the Offer will recognize gain or loss
equal to the difference between the amount of cash received (other than cash
attributable to accrued interest not previously taxed to the Holder, which will
be taxable as ordinary income) and such Holder's adjusted tax basis in such
Notes. Subject to the discussion in "Adoption of the Amendments" above, a
Holder's adjusted tax basis for a Note generally will equal the price such
Holder paid for the Note, increased by any market discount previously included
in income by such Holder pursuant to an election to include market discount in
gross income currently as it accrues and reduced by a portion of amortizable
bond premium which the Holder has previously elected to deduct from gross income
on an annual basis.
Such gain or loss will be capital gain or loss and will be long term
capital gain or loss if the Holder has held the Note for more than one year at
the time of sale. An exception to the capital gain treatment described above may
apply to a Holder who purchased a Note at a market discount. Subject to a
statutory de minimis exception, market discount is the excess of the principal
amount of such Note over the Holder's tax basis in such Note immediately after
its acquisition by such Holder. In general, unless the Holder has elected to
include market discount in income currently as it accrues (on a straight line
basis or, at the election of the Holder, on a constant interest basis), any gain
recognized by a Holder on the sale of a Note having market discount generally
will be treated as ordinary income to the extent of the market discount that has
accrued while such Note was held by the Holder.
10. PROCEDURES FOR TENDERING NOTES AND ACCEPTING THIS OFFER. Subject to
the terms of the Offer, tenders will be accepted after 9:00 a.m. and before 5:00
p.m., New York City time, on any New York City business day during the Tender
Period. All tenders will be executed in the customary manner of a corporate bond
trade through Lehman Brothers. Please do not send your Notes to the Company or
Lehman Brothers; rather, follow the tendering procedure described herein.
If you have an account with Lehman Brothers and desire to tender all or
any portion of the principal amount of your Notes, please contact your
representative at Lehman Brothers. If you do not currently have an account with
Lehman Brothers and desire to tender all or any portion of the principal amount
of your Notes, you must handle this matter through a broker, dealer, commercial
bank, trust company or other financial institution (collectively, a "broker").
Holders will not be required to pay any fee or commission to Lehman Brothers if
such Holders have an account with Lehman Brothers. Holders may, however, be
required to pay fees or commissions if Holders use a broker other than Lehman
Brothers.
6
<PAGE> 7
If any Holder has any questions regarding how to tender Notes, please
contact Ray Kahn of Lehman Brothers toll-free at (800) 438-3242 or collect at
(212) 528-7581.
All questions as to the validity, form, eligibility (including time of
receipt), agreement to tender and acceptance of any tender of the Notes shall be
determined by the Company, in its sole discretion, which determination shall be
conclusive and binding. The Company reserves the absolute right to reject, at
any time prior to payment of the Purchase Price for any Notes, any and all
tenders not in proper form or for which acceptance for payment or payment would,
in the opinion of the Company's counsel, be unlawful. The Company also reserves
the absolute right to waive any defects in tender with regard to any particular
Note. Neither the Company nor Lehman Brothers shall be under any duty to give
notification to tendering Holders of any defects or irregularities in tenders,
and neither of them shall incur any liability for failure to give any such
notification. Subject to the foregoing, Notes will be irrevocably accepted when
validly tendered.
The acceptance of the Offer by a Holder as set forth above will
constitute an agreement between the tendering Holder and the Company in
accordance with the terms and subject to the conditions of the Offer. The
acceptance of the Offer by a tendering Holder will constitute an agreement by
such Holder to deliver good and marketable title to all Notes tendered by such
Holder on the appropriate Settlement Date free and clear of all liens, charges,
claims, encumbrances, interests or restrictions of any kind. A tender of Notes
pursuant to this Offer becomes irrevocable by the relevant Holder at the time of
the tender. The Holder will not have any rights to withdraw Notes once they have
been tendered.
11. WITHDRAWAL AND AMENDMENT. To the extent legally permitted, the
Company expressly reserves the absolute right, in its sole discretion, to waive
any provision of the Offer or amend any of the terms of the Offer, other than
the Purchase Price or the requirement that Purchase Price be paid in cash. Any
waiver, amendment, or modification to the Offer will apply only to those Notes
which have not been accepted for purchase following their tender to the Company.
If the Company materially changes the terms of the Offer, the Company
will notify Holders, disseminate additional tender offer materials and extend
the Offer to the extent required by law. Following completion of the Offer, the
Company may purchase additional Notes in the open market, in privately
negotiated transactions, through subsequent tender offers or otherwise. Any
future purchases may be on the same terms or on terms which are more or less
favorable to Holders than the terms of the Offer. Any future purchases by the
Company will depend on various factors existing at that time.
Any extension or amendment will be followed as promptly as practicable
by public announcement thereof, the announcement in the case of an extension to
be issued no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled applicable Expiration Date. Without limiting the
manner in which the Company may choose to make any public announcement, the
Company shall have no obligation to publish, advertise
7
<PAGE> 8
or otherwise communicate any such public announcement other than by issuing a
release to the Dow Jones News Service.
12. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The Company
currently complies with the informational requirements of Section 13 and 15 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the SEC. Such
reports and other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and should be available at the SEC's
regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material may be obtained from the Public
Reference Section of the SEC at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
The following documents filed by the Company with the SEC are
incorporated herein by reference and shall be deemed to be a part hereof:
1. Annual Report of the Company on Form 10-K for the fiscal year ended
September 30, 1999; and
2. Current Report of the Company on Form 8-K dated January 13, 2000.
All documents and reports, if any, filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Offer to Purchase and prior to the expiration of the Offer made hereby shall be
deemed incorporated herein by reference and shall be deemed to be a part hereof
from the date of filing of such documents and reports. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Offer to
Purchase to the extent that a statement contained herein or in any subsequently
filed document or report that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Offer to Purchase.
13. DEALER MANAGER AND INFORMATION AGENT. Lehman Brothers has been
retained to act on behalf of the Company as dealer manager in connection with
the Offer and the Company has agreed to pay Lehman a fee upon the acceptance of
the Notes purchased pursuant to the Offer. Lehman Brothers will also be
reimbursed by the Company for Lehman Brothers' reasonable out-of-pocket expenses
incurred in connection with the solicitation and the Offer. The Company has
agreed to indemnify Lehman Brothers against certain liabilities and expenses in
connection with the solicitation and the Offer.
Lehman Brothers provides other investment banking and financial
advisory services to the Company. At any given time, Lehman Brothers may trade
the Notes for its own account or for the accounts of customers and, accordingly,
may hold a long or short position in the Notes.
8
<PAGE> 9
D.F. King & Co., Inc. has been appointed as information agent for the
Offer. Requests for additional copies of this Offer to Purchase or other related
materials may be directed to the information agent at the address and telephone
numbers set forth below for the information agent under "Other Matters." Holders
may also contact their broker, dealer, commercial bank or trust company for
assistance concerning the Offer.
Neither the dealer manager nor the information agent assume any
responsibility for the accuracy or completeness of the information concerning
the Company, its affiliates or the Notes contained in this Offer to Purchase.
14. OTHER MATTERS. The Offer is being made to all record and beneficial
holders of Notes. The Offer is not contingent upon the tender of any minimum
principal amount of Notes. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) Holders in any jurisdiction in which the making
or acceptance thereof would not be in compliance with securities, blue sky or
other laws of such jurisdiction. The Company is not aware of any jurisdiction in
which the making of the Offer or the tender of Notes pursuant thereto would not
be in compliance with the laws of such jurisdiction. If the Company becomes
aware of any state law prohibiting the making of the Offer or tender of Notes
pursuant thereto in such state, the Company will make a good faith effort to
comply with any such state statute or seek to have such state statute declared
inapplicable to the Offer. If, after such good faith effort, the Company cannot
comply with any such state statute, the Offer will not be made to (nor will
tenders be accepted from or on behalf of) holders of Notes in such state. In any
jurisdiction in which the Offer is required to be made by a licensed broker or
dealer, the Offer is deemed to be made by the dealer manager on behalf of the
Company.
No person has been authorized to give any information or to make any
representations other than those contained herein and, if given or made, such
information or representations must not be relied upon as having been
authorized. Neither the delivery of this Offer to Purchase and related documents
or attachments nor any purchase of Notes shall, under any circumstances, create
any implication that the information contained herein or therein is current as
of any time subsequent to the date of such information.
If you have any questions, please contact Ray Kahn of Lehman Brothers
at (800) 438-3242 or collect at (212) 528-7581. Requests for additional copies
of the Offer to Purchase may also be directed to D.F. King & Co., Inc. as
information agent, 77 Water Street, New York, New York 10005, by telephone at
(800) 714-3305 or collect at (212) 269-5550.
LEHMAN BROTHERS INC.
9
<PAGE> 10
LEHMAN BROTHERS
GLOBIX CORPORATION
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF ITS OUTSTANDING
13% SENIOR NOTES DUE 2005
February 8, 2000
To Brokers, Dealers, Commercial
Banks, Trust Companies and
Other Nominees:
Enclosed for your consideration is an Offer to Purchase dated February
8, 2000 (as it may be supplemented from time to time, the "Offer to Purchase")
relating to the offer (the "Offer") by Globix Corporation (the "Company") to
purchase for cash any and all of its outstanding 13% Senior Notes due 2005 (the
"Notes") at a purchase price (the "Purchase Price") equal to 106.5% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest up to,
but not including, the Settlement Date (as defined in the Offer to Purchase).
The Offer is more fully described in, and subject to the terms and conditions
in, the Offer to Purchase.
All capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Offer to Purchase.
We are asking you to contact your clients for whom you hold Notes
registered in your name or in the name of your nominee. THE NOTES ARE DTC
ELIGIBLE. YOU MAY HAVE POSITIONS REGISTERED IN YOUR NOMINEE NAME OR AT DTC OR
BOTH. PLEASE REVIEW ALL SOURCES.
The Company will not pay fees or commissions to any broker or dealer or
other person for soliciting tenders of Notes pursuant to the Offer. You will be
reimbursed for customary mailing and handling expenses incurred by you in
forwarding the enclosed materials to your clients. The Company will pay all
transfer taxes, if any, applicable to the transfer and sale of Notes to it or
its order pursuant to the Offer.
FOR YOUR INFORMATION AND FOR FORWARDING TO YOUR CLIENTS, WE ARE
ENCLOSING THE OFFER TO PURCHASE DATED FEBRUARY 8, 2000.
THERE IS NO LETTER OF TRANSMITTAL FOR THIS TRANSACTION. ALL TENDERS
WILL BE EXECUTED IN THE CUSTOMARY MANNER OF A CORPORATE BOND TRADE
THROUGH LEHMAN BROTHERS. PLEASE CALL LEHMAN BROTHERS AT (800) 428-3242 OR
COLLECT AT (212) 528-7581 TO EXECUTE YOUR CLIENT'S TENDER. ALL TENDERS WILL
SETTLE THROUGH NORMAL PROCEDURES.
WE URGE YOU TO CONTACT YOUR CLIENTS AS SOON AS POSSIBLE. THE OFFER WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON TUESDAY, MARCH 7, 2000 UNLESS
EXTENDED BY THE COMPANY.
<PAGE> 11
Any questions about the Offer or questions concerning procedures for
tendering Notes and requests for additional copies of the Offer to Purchase may
be directed to Ray Kahn of Lehman Brothers, as Dealer Manager, at (800) 438-3242
or collect at (212) 528-7581. Requests for additional copies of the Offer to
Purchase may also be directed to D.F. King & Co., Inc., as the information
agent, at (800) 714-3305 or collect at (212) 269-5550.
Very truly yours,
LEHMAN BROTHERS INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY PERSON AN AGENT OF THE COMPANY OR LEHMAN BROTHERS, OR AUTHORIZE YOU
OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF ANY
OF THEM WITH RESPECT TO THE OFFER NOT MADE IN THE OFFER TO PURCHASE.
2
<PAGE> 12
LEHMAN BROTHERS
GLOBIX CORPORATION
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF ITS OUTSTANDING
13% SENIOR NOTES DUE 2005
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON MARCH 7, 2000, UNLESS
EXTENDED (THE "EXPIRATION DATE").
February 8, 2000
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated February
8, 2000 (as it may be supplemented from time to time, the "Offer to Purchase")
relating to the offer (the "Offer") by Globix Corporation (the "Company") to
purchase for cash any and all of its outstanding 13% Senior Notes due 2005 (the
"Notes") at a purchase price (the "Purchase Price") equal to 106.5% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest up to,
but not including, the Settlement Date (as defined in the Offer to Purchase).
The Offer is more fully described in, and subject to the terms and conditions
in, the Offer to Purchase.
All capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Offer to Purchase.
If you have an account with Lehman Brothers and desire to tender all or
any portion of the principal amount of your Notes, please contact your
representative at Lehman Brothers. If you do not currently have an account with
Lehman Brothers and desire to tender all or any portion of the principal amount
of your Notes, the Company requests that you handle this matter through your
broker, dealer, commercial bank, trust company or other financial institution
(collectively, a "broker"). Holders will not be required to pay any fee or
commission to Lehman Brothers if such holders have an account with Lehman
Brothers. Holders may, however, be required to pay fees or commissions if
holders use a broker other than Lehman Brothers.
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON TUESDAY,
MARCH 7, 2000 UNLESS EXTENDED BY THE COMPANY.
ALL TENDERS WILL BE EXECUTED IN THE CUSTOMARY MANNER OF A CORPORATE
BOND TRADE THROUGH LEHMAN BROTHERS.
<PAGE> 13
Any questions about the Offer or questions concerning procedures for
tendering Notes and requests for additional copies of the Offer to Purchase may
be directed to Ray Kahn of Lehman Brothers, as Dealer Manager, at (800) 438-3242
or collect at (212) 528-7581. Requests for additional copies of the Offer to
Purchase may also be directed to D.F. King & Co., Inc., as information agent, at
(800) 714-3305 or collect at (212) 269-5550.
Very truly yours,
LEHMAN BROTHERS INC.
NEITHER THE COMPANY NOR LEHMAN BROTHERS MAKES ANY RECOMMENDATION THAT
ANY HOLDER TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF SUCH HOLDER'S
NOTES, AND NO ONE HAS BEEN AUTHORIZED BY EITHER OF THEM TO MAKE SUCH
RECOMMENDATION. HOLDERS MUST MAKE THEIR OWN DECISION AS TO WHETHER TO TENDER
NOTES, AND IF SO, THE PRINCIPAL AMOUNT OF NOTES TO TENDER.
2
<PAGE> 1
Exhibit 10.1
$600,000,000
GLOBIX CORPORATION
12.50% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
January 28, 2000
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
ING BARINGS LLC
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Globix Corporation, a Delaware corporation (the "Issuer"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Lehman Brothers Inc., Chase Securities Inc., Credit Suisse First Boston
Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith
Barney Inc. and ING Barings LLC (each, an "Initial Purchaser", collectively, the
"Initial Purchasers") $600,000,000 in aggregate principal amount of its 12.50%
Senior Notes due 2010 (the "Initial Notes") to be issued under an indenture (the
"Indenture") between the Issuer and HSBC Bank USA, as Trustee (the "Trustee"),
relating to the Initial Notes.
The Initial Notes will be offered and sold to the Initial
Purchasers without being registered under the United States Securities Act of
1933, as amended (the "Securities Act"), in reliance upon one or more exemptions
therefrom. The Issuer has prepared a preliminary offering memorandum dated
January 12, 2000 (the "Preliminary Offering Memorandum") and will prepare an
offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Issuer, the Initial Notes and the Registration
Rights Agreement (as defined below). Copies of the Preliminary Offering
Memorandum have been, and copies of the Offering Memorandum will be, delivered
by the Issuer to the Initial Purchasers pursuant to the terms of this Agreement.
Any reference herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Issuer confirms that it has authorized the use of
the Preliminary Offering Memorandum and the Offering Memorandum in connection
with the offering and resale of the Initial Notes by the Initial Purchasers in
accordance with Section 3.
Upon original issuance thereof, and until such time as the
same is no longer
<PAGE> 2
2
required under the applicable requirements of the Securities Act, the Initial
Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO GLOBIX, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHICH THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT GLOBIX AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR
<PAGE> 3
3
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION
OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
You have represented and warranted to the Issuer that you will
make offers (the "Exempt Resales") of the Initial Notes purchased by you
hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom you reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Securities Act
("QIBs"), and (ii) to persons other than U.S. Persons in offshore transactions
meeting the requirements of Rule 903 and 904 of Regulation S under the
Securities Act (such persons specified in clauses (i) and (ii) being referred to
herein as the "Eligible Purchasers"). As used herein, the terms "offshore
transaction" and "U.S. person" have the respective meanings given to them in
Regulation S. You will offer the Initial Notes to Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders of the Initial Notes (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, dated the Closing Date (as defined in Section 3
below), among the Issuer and the Initial Purchasers, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Issuer will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") relating to the Company's 12.50% Series
B Notes due 2010 (the "New Notes" and, together with the Initial Notes, the
"Notes") to be offered in exchange for the Initial Notes (such offer to exchange
being referred to collectively as the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement," and together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale of the Initial
Notes by certain holders of such notes, and to use its best efforts to cause
such Registration Statements to be declared effective. This Agreement, the
Indenture, the Initial Notes, the New Notes and the Registration Rights
Agreement are referred to herein collectively as the "Operative Documents."
1. Representations, Warranties and Agreements of the Issuer.
The Issuer represents, warrants to and agrees with, the Initial Purchasers that:
<PAGE> 4
4
(a) The Preliminary Offering Memorandum did not as of its date
and the Offering Memorandum, did not as of its date and will not as of the
Closing Date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Issuer does not make any representation
or warranty as to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Issuer by or on the behalf
of any Initial Purchaser through Lehman Brothers Inc. specifically for inclusion
therein.
(b) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared by the Issuer for use by the Initial Purchasers in
connection with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the knowledge of
the Issuer, is contemplated.
(c) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 3 and their compliance
with the agreements set forth herein, it is not necessary, in connection with
the issuance and sale of the Initial Notes to the Initial Purchasers and the
offer, resale and delivery of the Initial Notes by the Initial Purchasers in the
manner contemplated by this Agreement and the Offering Memorandum, to register
the Initial Notes under the Securities Act or to qualify the Indenture under the
United States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(d) Each of the Issuer and its material subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, earnings,
prospects, financial condition or results of operations of the Issuer and its
subsidiaries, taken as a whole ("Material Adverse Effect"). The following list
constitutes the Issuer's only material subsidiaries: NAFT International Ltd.,
NAFT Computer Service Corp., ATC Merger Corp., PFM Communications, Inc., Globix
Limited, GLX Leasing Limited and Globix Holding U.K. Ltd.
(e) The Issuer has an authorized capitalization as set forth
in the Offering Memorandum, and all of the issued and outstanding shares of
capital stock of the Issuer have been duly and validly authorized and issued,
are fully paid and nonassessable and conform to the description thereof
contained in the Offering Memorandum. Except as otherwise disclosed in the
Offering Memorandum, all of the issued and outstanding shares of capital stock
owned directly or indirectly by the Issuer of each subsidiary of the Issuer have
been duly and validly authorized
<PAGE> 5
5
and issued and are fully paid and nonassessable and are owned directly or
indirectly by the Issuer, free and clear of all liens, encumbrances, equities or
claims (each, a "Lien"). Except as set forth in the Offering Memorandum, the
Issuer does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity,
other than its subsidiaries and interests with a book value of less than $20.0
million and which do not require (by contract, law or otherwise) any additional
investments to be made. Complete and correct copies of the certificates of
incorporation and of the by-laws (or other organizational or constitutive
documents) of the Issuer and each of the material subsidiaries, and all
amendments thereto, have been delivered to the Initial Purchasers, and no
changes will be made between to the date hereof and the Closing Date.
(f) The execution, delivery and performance of the Operative
Documents by the Issuer and the consummation of the transactions contemplated
hereby and thereby, including the issuance of the Initial Notes and the New
Notes, will not (w) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under (or with the giving of
notice or the passage of time or both would constitute a default under), any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer or any of its subsidiaries is a party or by which
the Issuer or any of its subsidiaries is bound or to which any of the properties
or assets of the Issuer or any of its subsidiaries is subject, (x) result in any
violation of the provisions of the certificate of incorporation, by-laws or
other constitutive document of the Issuer or any of its subsidiaries, (y) result
in the suspension, termination or revocation of any Authorization (as defined
below) of the Issuer or any of its subsidiaries or any other impairment of the
rights of the holder of any such authorization or (z) result in any violation of
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Issuer or any of its subsidiaries or any of
their properties or assets, except, with respect to clauses (w) and (z), to the
extent that any conflict, breach or violation thereof would not result in a
Material Adverse Effect; and no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Operative Documents
by the Issuer, and the consummation of the transactions contemplated hereby and
thereby except (i) with respect to the transactions contemplated by the
Registration Rights Agreement, as may be required under the Securities Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
and (ii) as required by state securities laws.
(g) There are no legal or governmental actions, suits, claims,
arbitrations or proceedings pending or, to the best of Issuer's knowledge,
threatened to which the Issuer or any of its subsidiaries is or could reasonably
be expected to be a party or to which any of their respective property is or
could reasonably be expected to be subject that are required to be described in
the Offering Memorandum and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be described in
the Offering Memorandum that are not so described as required.
(h) Neither the Issuer nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
<PAGE> 6
6
"Environmental Laws"), any provisions of the Employee Retirement Income Security
Act of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act
or the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
(i) Each of the Issuer and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Issuer and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Issuer or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(j) After due inquiry, the Issuer reasonably believes that
there are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(k) The Issuer has full power and authority to execute,
deliver and perform its obligations under this Agreement; this Agreement and the
transactions contemplated hereby have been duly authorized, executed and
delivered by the Issuer; the Issuer has taken, received or fulfilled all
actions, authorizations and conditions necessary in connection with this
Agreement and the transactions contemplated hereby; and this Agreement
constitutes the legal, valid and binding agreement of the Issuer, enforceable
against the Issuer in accordance with its terms, except as the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
except to the extent that rights to indemnification thereunder may be limited by
applicable federal or state securities laws or unenforceable as against public
policy.
(l) The Issuer has full power and authority to enter into the
Indenture; the Indenture has been duly authorized by the Issuer and, upon the
effectiveness of a Registration
<PAGE> 7
7
Statement, will be qualified under the Trust Indenture Act; on the Closing Date,
the Indenture will have been duly executed and delivered by the Issuer and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will constitute a valid and legally binding obligation of
the Issuer, enforceable in accordance with its terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and that, to the extent the Indenture is described in
the Offering Memorandum, such description conforms in all material respects with
the terms and conditions of the Indenture.
(m) The Issuer has full corporate power and authority to issue
and sell the Initial Notes; the Initial Notes have been duly authorized by the
Issuer; when the Initial Notes are delivered and paid for pursuant to this
Agreement on the Closing Date, such Initial Notes will have been duly executed,
authenticated, issued and delivered in accordance with the provisions of the
Indenture and, assuming due authentication of the Initial Notes by the Trustee,
such Initial Notes will constitute valid and legally binding obligations of the
Issuer, entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; and the Initial Notes
conform in all material respects to the description thereof contained in the
Offering Memorandum.
(n) The Issuer has full corporate power and authority to issue
the New Notes; the New Notes have been duly and validly authorized by the
Company and if and when duly issued and authenticated in accordance with the
terms of the Indenture and, assuming due authentication of the New Notes by the
Trustee, upon delivery in accordance with the Exchange Offer provided for in the
Registration Rights Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms (subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principals of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law).
(o) The Issuer has full corporate power and authority to enter
into the Registration Rights Agreement; the Registration Rights Agreement and
the transactions contemplated thereby have been duly authorized by the Issuer;
when the Registration Rights Agreement is duly executed and delivered by the
Issuer (assuming due authorization, execution and delivery by the Initial
Purchasers), it will be a valid and legally binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
<PAGE> 8
8
covenant of good faith and fair dealing, and except with respect to the rights
of indemnification and contribution thereunder, where enforcement thereof may be
limited by United States federal or state securities laws or the policies
underlying such laws; and the Registration Rights Agreement conforms in all
material respects to the description thereof contained in the Offering
Memorandum.
(p) Except for the Registration Rights Agreement, there are no
contracts, agreements or understandings involving the Issuer or any of the
subsidiaries, granting any person the right to require the Issuer to include any
securities in a registration statement filed with respect to the Initial Notes
pursuant to the Registration Rights Agreement.
(q) Except as disclosed in the Offering Memorandum neither the
Issuer nor any of its subsidiaries has sustained, since the date of the latest
audited financial statements (which is November 18, 1999, and, with respect to
the matter discussed in the second paragraph of Note 12, December 30, 1999)
included in the Offering Memorandum, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, except for losses and interferences which do not, in the aggregate, have
a Material Adverse Effect; and, since such date, (i) there has not been any
change resulting in, or any development involving a prospective change which is
reasonably likely to result in, a Material Adverse Effect, (ii) there has not
been any material adverse change or any development involving a prospective
material decrease in the capital stock or increase in the long-term debt of the
Issuer or any of its subsidiaries, (iii) neither the Issuer nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent, outside of the ordinary course of business and (iv) neither the
Issuer nor any of its subsidiaries has entered into any material transaction,
except transactions in the ordinary course of business.
(r) The consolidated financial statements included in the
Offering Memorandum (and any amendment or supplement thereto), together with
related schedules and notes, present fairly the consolidated financial position,
results of operations and changes in financial position of the Issuer and its
subsidiaries on the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; the supporting schedules, if any, included in the Offering
Memorandum present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Issuer.
(s) Arthur Andersen LLP, who has certified the consolidated
financial statements of the Issuer included in the Offering Memorandum, whose
report appears in the Offering Memorandum, are independent public accountants as
required by the Securities Act and the rules
<PAGE> 9
9
and regulations thereunder.
(t) The Issuer and each of its subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them, except to the extent that the failure to have
such title would not have a Material Adverse Effect, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Offering Memorandum or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Issuer and its subsidiaries; and all real property
and buildings held under lease by the Issuer and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Issuer and its subsidiaries, in each case
except as described in the Offering Memorandum.
(u) Except as otherwise set forth in the Preliminary Offering
Memorandum and the Offering Memorandum, the agreements to which the Issuer
and/or its subsidiaries are a party are legal, valid and binding agreements,
enforceable against the Issuer or such subsidiaries, as applicable, in
accordance with their terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally or by general principles of
equity, and the Issuer is not in material breach or default under any of such
agreements and, to the best of the Issuer's knowledge, the other contracting
party or parties thereto are not in material breach or default under any of such
agreements, except to the extent as would not reasonably be expected to have a
Material Adverse Effect.
(v) The Issuer and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Issuer nor any of its subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect.
(w) No relationship, direct or indirect, exists between or
among the Issuer or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Issuer or any of its
subsidiaries on the other hand, which would be required to be disclosed in a
registration statement on Form S-1 under the Securities Act and is not so
disclosed.
(x) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or, to the Issuer's best
knowledge, threatened against the Issuer or any of its subsidiaries before the
National Labor Relations Board or any state or local labor relations board, (ii)
strike, labor dispute, slowdown or stoppage pending or, to the Issuer's best
knowledge, threatened against the Issuer or any of its subsidiaries or (iii)
union representation question existing with respect to the employees of the
Issuer and its subsidiaries, except for such
<PAGE> 10
10
actions specified in clause (i), (ii) or (iii) above, which, singly or in the
aggregate, would not have a Material Adverse Effect. To the best of the Issuer's
knowledge, no collective bargaining organizing activities are taking place with
respect to the Issuer or any of its subsidiaries.
(y) The Issuer and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) All material tax returns required to be filed by the
Issuer and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Issuer or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(aa) The Issuer owns or has valid rights to use all patents,
trademarks, service marks, tradenames, domain names, software, databases,
technology, copyrights, franchises, formulae, licenses, inventions, trade
secrets, know-how and all other intellectual property rights ("Intellectual
Property") described in the Offering Memorandum as being owned by it or
necessary for the conduct of its business, as now conducted or (together with
the Intellectual Property as the Issuer reasonably expects it can obtain)
hereafter proposed to be conducted as described in the Offering Memorandum. The
Issuer is not aware of any infringement of or conflict with such rights or any
claims to the contrary or any challenge by any other person to the validity,
enforceability and/or rights of the Issuer with respect to the foregoing, except
as would not reasonably be expected to result in a Material Adverse Effect. The
Issuer's business as now conducted does not and as proposed to be conducted, to
the Issuer's knowledge will not infringe or conflict with in any material
respect with the Intellectual Property of any person. No claim, suit, action,
arbitration, proceeding, order, decree, judgment or settlement is outstanding or
pending or threatened against the Issuer alleging the infringement by the Issuer
of any Intellectual Property of any person or challenging the validity,
enforceability and/or ownership of any Intellectual Property owned or used by
the Issuer, except as would not reasonably be expected to result in a Material
Adverse Effect. There is no pending or threatened action, proceeding or claim by
the Issuer that any third party is infringing the Issuer's Intellectual
Property. The Issuer has duly and properly filed or caused to be filed with the
United States Patent and Trademark Office all United States patent applications
described in the Offering Memorandum as filed by it. The Issuer owns exclusively
its patent and patent applications described in the Offering Memorandum. The
Issuer takes all reasonable actions to protect and maintain its Intellectual
Property.
(bb) No event has occurred nor has any circumstance arisen
which, had the
<PAGE> 11
11
Initial Notes been issued on the Closing Date, would constitute a default or an
Event of Default (as such term is defined in the Indenture).
(cc) Neither the Issuer nor any of its subsidiaries is in
violation of its certificate of incorporation or by-laws or equivalent
constitutive documents; and neither the Issuer nor any of its subsidiaries is,
except as otherwise described in the Offering Memorandum (i) in default, and no
event has occurred which, with notice, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (ii) in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
properties or assets may be subject except, in the case of both clause (i) and
(ii), defaults and violations which the Issuer reasonably believes will not, in
the aggregate, result in a Material Adverse Effect.
(dd) Each certificate signed by any officer of the Issuer and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Issuer to the Initial
Purchasers as to the matters covered thereby.
(ee) The Issuer has timely and properly filed with the
Commission all reports and other documents required to have been filed by it
with the Commission pursuant to the Securities Act, the Exchange Act and the
rules and regulations under each of such Acts. True and complete copies of all
such reports and other documents have been delivered or made available to you or
your counsel.
(ff) Neither the Issuer nor any of its subsidiaries has at any
time during the last five (5) years (i) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
(gg) The Issuer is not and, after giving effect to the
offering and sale of the Initial Notes and the applicable proceeds thereof as
described in the Offering Memorandum, will not be an "investment company" within
the meaning of and subject to regulation under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(hh) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Notes are listed on any
national securities exchange, registered under Section 6 of the Exchange Act or
quoted on an automated inter-dealer quotation system.
(ii) Neither the Issuer nor any of its affiliates (as defined
in Rule 501(b) of Regulation D promulgated under the Securities Act ("Regulation
D")), nor any agent acting on its or their behalf (other than the Initial
Purchasers, about which no representation is made by the Issuer), has offered or
will offer or sell the Notes by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act
or in any manner
<PAGE> 12
12
involving a public offering within the meaning of Section 4(2) of the Securities
Act; the Issuer has not entered into any contractual arrangement with respect to
the distribution of the Notes except for this Agreement and the Issuer will not
enter into any such arrangement.
(jj) Neither of Issuer, nor any of its affiliates (as defined
in Rule 501(b) of Regulation D) nor any person acting on behalf of any such
person (other than the Initial Purchasers, about which no representation is made
by the Issuer), has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Securities Act) which is or will be integrated with the sale
of the Notes in a manner that would require the registration under the
Securities Act of the Notes.
(kk) Neither of the Issuer nor any of its subsidiaries has
taken, directly or indirectly, any action which is designed to or which has
constituted or which might reasonably have been expected to cause or result in
stabilization or manipulation of the price of any security of the Issuer in
connection with the offering of the Notes.
(ll) The Issuer has not distributed and will not distribute
prior to the later of (i) the Closing Date and (ii) completion of the
distribution of the Initial Notes, any offering material in connection with the
offering and sale of the Notes other than the Preliminary Offering Memorandum
and the Offering Memorandum.
(mm) Assuming (i) that your representations and warranties in
Section 2 hereof are true, (ii) compliance by you with your covenants set forth
in Section 2 hereof and (iii) that each of the Eligible Purchasers is either (A)
an entity that you reasonably believe to be a QIB or (B) a person who is not a
"U.S. person" and who acquires the Initial Securities outside the United States
in an "offshore transaction" (within the meaning of Regulation S), the purchase
of the Initial Notes by you pursuant hereto and the resale of the Initial Notes
pursuant to the Exempt Resales is exempt from the registration requirements of
the Securities Act.
(nn) The Issuer has been advised by the Private Offerings,
Resale and Trading through Automated Linkages Market of The National Stock
Market, Inc. (the "Portal Market") that the Initial Notes have been designated
PORTAL-eligible securities in accordance with the rules and regulation of the
National Association of Securities Dealers, Inc.
(oo) Neither the Issuer nor any of its affiliates or any
person acting on its or their behalf has engaged or will engage during the
applicable restricted period in any directed selling efforts within the meaning
of Rule 902(b) of Regulation S with respect to the Notes, and the Issuer and its
affiliates and all persons acting on their behalf have complied with and will
comply with the offering restriction requirements of Regulation S in connection
with the offering of the Notes outside the United States; provided that no
representation is made hereby as to the Initial Purchasers or any person, acting
on their behalf.
(pp) The sale of the Initial Notes pursuant to Regulation S
are "offshore
<PAGE> 13
13
transactions" and are not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(qq) The Issuer is not required to deliver the information
specified in Rule 144A(d)(4) under the Securities Act in connection with the
Exempt Resales.
2. Representations, Warranties and Agreements of the Initial
Purchasers. Each Initial Purchaser represents, warrants to and agrees with, the
Issuer that:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Initial Notes.
(b) Such Initial Purchaser (i) is not acquiring the Initial
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Initial Notes in a transaction that would violate
the Securities Act or the securities laws of any State of the United States or
any other applicable jurisdiction; (ii) will solicit offers to buy the Initial
Notes only from and will offer to sell the Initial Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by
the Offering Memorandum; and (iii) will not offer or sell the Initial Notes
pursuant to, nor has it offered or sold the Initial Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising).
(c) Such Initial Purchaser represents that it has not offered,
sold or delivered the Initial Notes, and will not offer, sell or deliver the
Initial Notes (i) as part of its distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, within the United States or to, or for the account or benefit of
U.S. persons, except in accordance with Rule 144A under the Act. Accordingly,
such Initial Purchaser represents and agrees that neither it, its affiliates nor
any persons acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Rule 902(b) of Regulation S with
respect to the Initial Notes, and it, its affiliates and all persons acting on
its behalf have complied and will comply with the offering restrictions
requirements of Regulation S.
(d) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any Initial Notes to
persons in the United Kingdom prior to the expiry of the period of six months
from the issue date of the Initial Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Initial Notes in, from or otherwise
involving the United Kingdom, and (iii) it has only issued or passed on and will
only issue or pass on in the
<PAGE> 14
14
United Kingdom any document received by it in connection with the issuance of
the Initial Notes to a person who is a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment advertisements) (Exemptions) Order 1995
or is a person to whom the document may otherwise lawfully be issued or passed
on.
(e) Such Initial Purchaser agrees not to cause any
advertisement of the Initial Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular relating
to the Initial Notes, except such advertisements as may be permitted by law.
(f) Such Initial Purchaser understands that the Issuer and,
for purposes of the opinions to be delivered to you pursuant to Section 6
hereof, counsel to the Issuer and counsel to the Initial Purchasers, will rely
upon the accuracy and truth of the foregoing representations and you hereby
consent to such reliance.
The terms used in this Section 2 that have meanings assigned
to them in Regulation S are used herein as so defined.
3. Purchase, Sale and Delivery of Notes.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Issuer agrees to sell
to each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Issuer, the principal amount of Initial Notes set
forth opposite such Initial Purchaser's name in Schedule I hereto, at a purchase
price equal to 97% of their principal amount, plus accrued interest, if any (the
"purchase price").
Delivery of and payment for the Initial Notes shall be made at
9:00 a.m., New York time, on February 8, 2000, or such later date as the Initial
Purchasers shall designate, which date and time may be postponed by agreement
between the Initial Purchasers and the Issuer or as provided in Section 9 (such
date and time of delivery and payment for the Initial Notes being herein called
the "Closing Date"). Delivery of the Initial Notes shall be made to the Initial
Purchasers against payment of the purchase price in US dollars (after the
deduction of costs and expenses incurred pursuant to Section 5) by the Initial
Purchasers through the Initial Purchasers. Payment for the Initial Notes shall
be effected either by wire transfer of immediately available funds to an account
with a bank in The City of New York, the account number and the ABA number for
such bank to be provided by the Issuer to the Initial Purchasers at least two
business days in advance of the Closing Date, or by such other manner of payment
as may be agreed by the Issuer and the Initial Purchasers.
(b) The Issuer will deliver against payment of the purchase
price the Initial Notes in the form of one or more permanent global certificates
(the "Global Notes"), deposited with DTC or its nominee. Beneficial interests in
the Notes will be shown on, and transfers thereof will be effected only through,
records maintained in book-entry form by DTC and its participants.
4. Further Agreements of the Issuer. The Issuer agrees:
<PAGE> 15
15
(a) The Issuer will advise the Initial Purchasers promptly of
any proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplementation to which the Initial Purchasers reasonably
object. If, at any time prior to completion of the resale of the Initial Notes
by the Initial Purchasers (such time not to exceed two years from the Closing
Date), any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Offering Memorandum in order that the
Offering Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, the Issuer shall promptly notify the Initial
Purchasers of such event or occurrence and shall promptly prepare, subject to
the first sentence of this Section 4(a), such amendment or supplement as may be
necessary to correct such untrue statement or omission. Neither the Initial
Purchasers' consent to, nor their delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(b) The Issuer will furnish to the Initial Purchasers and to
counsel for the Initial Purchasers copies of the Preliminary Offering Memorandum
and the Offering Memorandum (and all amendments and supplements thereto) in each
case as soon as available and in such quantities as the Initial Purchasers
reasonably requests for internal use and for distribution to prospective
purchasers. The Issuer will pay the expenses of printing and distributing to the
Initial Purchasers all such documents.
(c) Promptly from time to time the Issuer will use its
reasonable efforts to take such action as the Initial Purchasers may reasonably
request, in cooperation with the Initial Purchasers, to qualify the Initial
Notes for offering and sale under the securities laws of such jurisdictions as
the Initial Purchasers may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions in the
United States or Canada for as long as may be necessary to complete the resale
of the Initial Notes; provided that in connection therewith the Issuer shall not
be required to qualify as a foreign corporation or otherwise subject itself to
taxation in any jurisdiction in which it is not otherwise so qualified or
subject.
(d) The Issuer will apply the proceeds from the sale of the
Initial Notes as set forth under "Use of Proceeds" in the Offering Memorandum.
(e) Until the second anniversary of the last Closing Date, the
Issuer will, upon request, furnish to the Initial Purchasers and any holder of
Transfer Restricted Securities (as defined in the Registration Rights
Agreement), a copy of the restrictions on transfer which the Issuer believes are
applicable to the Transfer Restricted Securities; provided, however, that
nothing contained herein shall obligate the Issuer to track or trace particular
Transfer Restricted Securities held by anyone other than the Issuer or any of
its affiliates (as defined in Rule 144 under the Securities Act).
<PAGE> 16
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(f) In connection with the offering of the Initial Notes,
until the Initial Purchasers shall have notified the Issuer of the completion of
the resale of the Initial Notes, none of the Issuer, or any of its affiliates
has or will, either alone or with one or more other persons, take any action,
directly or indirectly, which is designed to or which has constituted or which
might reasonably have been expected to cause or result in stabilization or
manipulation of the price of any security of the Issuer in connection with the
offering of the Initial Notes.
(g) For a period of 90 days after the date hereof, the Issuer,
its direct or indirect subsidiaries and its affiliates will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
debt securities issued or guaranteed by the Issuer or any of its affiliates and
subsidiaries (except the New Notes in connection with the Exchange Offer),
without the prior written consent of Lehman Brothers Inc. Neither the Issuer nor
any of its direct or indirect subsidiaries will at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act to cease to be applicable to the offer and sale of the Initial Notes.
(h) So long as any of the Initial Notes are "restricted
securities" within the meaning of Rule 144 (a) (3) under the Securities Act, the
Issuer will provide to any holder of the Initial Notes or to any prospective
purchaser of the Initial Notes designated by any holder, upon request of such
holder or prospective purchaser, information required to be provided by Rule
144A (d) (4) or Rule 144(c) of the Securities Act if, at the time of such
request, the Issuer is not subject to the reporting requirements under Section
13 or 15 (d) of the Exchange Act.
(i) Each of the Initial Notes will bear, to the extent
applicable, the applicable legend contained in "Notice to Investors" in the
Offering Memorandum for the time period and upon the other terms stated therein,
except after the Initial Notes are resold pursuant to a registration statement
effective under the Securities Act.
(j) The Issuer will take such steps as shall be necessary to
ensure that it shall not become an "investment company" within the meaning of
such term under the Investment Company Act, and the rules and regulations of the
Commission thereunder.
(k) The Issuer will use its best efforts to arrange for the
Notes to be accepted for clearance and settlement through DTC. In addition, the
Issuer will use its best efforts to cause the Initial Notes to be eligible for
inclusion in the Portal Market.
(l) The Issuer will cause all Notes to be listed on each
securities exchange or automated quotation system on which similar securities
issued by the Issuer are then listed prior to the effectiveness of the
Registration Statement.
5. Expenses. The Issuer agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Notes, and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and distribution of the Preliminary Offering Memorandum, the Offering Memorandum
and any amendment or supplement to the Offering Memorandum, all
<PAGE> 17
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as provided in this Agreement; (c) the costs of producing and distributing the
Operative Documents; (d) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 4(c) and of
preparing, printing and distributing a Blue Sky Memorandum (including reasonable
related fees and expenses of counsel to the Initial Purchasers); (e) all costs
and expenses incident to (i) the preparation of the "road show" presentation
materials and (ii) the road show travelling expenses of the Issuer; (f) the
costs of preparing the Global Notes; (g) all expenses and fees in connection
with the application for inclusion of the Initial Notes in the PORTAL Market,
and the inclusion of the Notes on each securities exchange or automated
quotation system on which similar securities issued by the Issuer are listed;
(h) the fees and expenses (including fees and disbursements of counsel) of the
Trustee; (i) the cost and charges of any transfer agent or registrar; (j) all
stamp or other issuance or transfer taxes or governmental duties, if any,
payable by the Initial Purchasers in connection with the offer and sale of the
Initial Notes to the Initial Purchasers and by the Initial Purchasers to the
initial purchasers thereof; and (k) all other costs and expenses incident to the
performance of the obligations of the Issuer under this Agreement not otherwise
specifically provided for in this Section including, without limitation, the
fees and expenses of Arthur Andersen LLP, the Issuer's independent accountants,
and the fees and expenses of Milberg Weiss Bershad Hynes & Lerach LLP and
Skadden, Arps, Slate, Meagher & Flom LLP, counsels to the Issuer, but not
including the fees of Simpson Thacher and Bartlett, counsel to the Initial
Purchasers.
6. Conditions of the Initial Purchasers' Obligations. The
several obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Issuer contained herein, to the performance by the Issuer of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) No Initial Purchaser shall have discovered and disclosed
to the Issuer on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of counsel to the Initial Purchasers, is material or omits
to state any fact which is material and is required to be stated therein or is
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Operative Documents and the
Offering Memorandum or any amendment or supplement thereto, and all other legal
matters relating to the Operative Documents and the transactions contemplated
thereby shall be satisfactory in all material respects to counsel to the Initial
Purchasers, and the Issuer shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(c) Milberg Weiss Bershad Hynes & Lerach LLP shall have
furnished to the Initial Purchasers their written opinion, as counsel to the
Issuer, addressed to the Initial Purchasers and dated the Closing Date,
substantially in the form set forth in Exhibit A.
(d) Skadden, Arps, Slate, Meagher & Flom LLP shall have
furnished to the Initial Purchasers their written opinion, as counsel to the
Issuer, addressed to the Initial Purchasers and
<PAGE> 18
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dated the Closing Date, in form and substance satisfactory to the Initial
Purchasers, to the effect set forth in Exhibit B.
(e) Taylor Joynson & Garret shall have furnished to the
Initial Purchasers their written opinion, as counsel to the Issuer, addressed to
the Initial Purchasers and dated the Closing Date, substantially in the form set
forth in Exhibit C.
(f) Jeffrey Green Russell shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Issuer, addressed to the
Initial Purchasers and dated the Closing Date, substantially in the form set
forth in Exhibit D.
(g) The Initial Purchasers shall have received from Simpson
Thacher & Bartlett, counsel for the Initial Purchasers, such opinion or
opinions, dated as of the Closing Date, with respect to the issuance and sale of
the Initial Notes, the Offering Memorandum and other related matters as the
Initial Purchasers may reasonably require, and the Issuer shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) The Trustee shall have furnished to the Initial Purchasers
an officer's certificate, dated such Delivery Date, in form and substance
satisfactory to the Initial Purchasers, to the effect that (i) the Indenture has
been duly authorized, executed and delivered by the Trustee, (ii) each person
who, on behalf of the Trustee, executed and delivered the Indenture was at the
date thereof and is now duly elected, appointed or authorized, qualified and
acting as an officer or authorized signatory of the Trustee and duly authorized
to perform such acts at the respective times of such acts and the signatures of
such persons appearing on such document are their genuine signatures and (iii)
such other matters reasonably requested by the Initial Purchasers to be included
in such officer's certificate. Attached to the officer's certificate shall be an
extract of the Bylaws of the Trustee, duly adopted by its Board of Directors,
respecting the signing authority of the persons mentioned in clause (ii) above
and a letter from an officer of the Trustee authorizing, pursuant to such
Bylaws, such signing authority, which Bylaws and letter at the Closing Date are
in full force and effect.
(i) With respect to the letter of Arthur Andersen LLP
delivered to the Initial Purchasers concurrently with the execution of this
Agreement (the "initial letter"), the Issuer shall have furnished to the Initial
Purchasers a letter (the "bring-down letter") of such accountants, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that it is an
independent public accountant within the meaning of the Securities Act and is in
compliance with the applicable rules relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date not more
than three days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
<PAGE> 19
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(j) The Issuer shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its Chief Executive Officer, President
or Vice President and Chief Financial Officer in form and to the effect that:
(i) The representations, warranties and agreements of the
Issuer in Section 1 are true and correct as of the Closing Date; the
Issuer has complied in all material respects with all its agreements
contained herein to be performed on or prior to the Closing Date, and
the conditions set forth in Section 6 have been fulfilled;
(ii)(A) Except as disclosed in the Offering Memorandum,
neither the Issuer nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included in the
Offering Memorandum, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labour dispute or court or governmental action,
order or decree, except for losses and interferences which do not, in
the aggregate, have a Material Adverse Effect; and (B) since such date,
there has not been any change resulting in, or any development
involving a prospective change which is likely to result in, a Material
Adverse Effect, other than as set forth or contemplated in the Offering
Memorandum;
(iii) They have carefully examined the Offering Memorandum
and, in their opinion (A) the Offering Memorandum, as of the Closing
Date, did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (B) since
the date of the Offering Memorandum, no event has occurred which would
have been required to be set forth in a supplement or amendment to the
Offering Memorandum had the Offering Memorandum been filed as part of
the Registration Statement on Form S-1 under the Securities Act.
(k) (i) Neither the Issuer nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Offering Memorandum any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Memorandum
or (ii) since such date there shall not have been any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Issuer
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or the delivery of the Initial Notes being delivered on
the Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
<PAGE> 20
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(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Issuer's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Issuer's debt securities.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market System,
or trading in any securities of the Issuer on any exchange shall have been
suspended or minimum prices shall have been established on any such exchange by
the Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium on commercial banking
activities in New York shall have been declared by United States federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or
war by the United States, or (iv) there shall have occurred any change in
financial markets or any calamity or crisis that in the sole judgment of the
Initial Purchasers is material and adverse, and in the case of any of the events
specified in clauses (i) through (iv), such event singly or together with any
other such event makes it, in the judgment of the Initial Purchasers,
impracticable to market the Initial Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(n) The Indenture shall have been duly executed and delivered
by the Issuer and the Trustee and the Initial Notes shall have been duly
executed and delivered by the Issuer and duly authenticated by the Trustee.
(o) The Issuer and the Initial Purchasers shall have executed
and delivered the Registration Rights Agreement (in form and substance
satisfactory to the Initial Purchasers) and the Registration Rights Agreement
shall be in full force and effect.
(p) The NASD shall have accepted the Initial Notes for trading
on PORTAL and the Notes shall have been accepted for clearance and settlement
through DTC.
(q) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal of any rule or
regulation under the Securities Act or the Exchange Act by the Commission or any
amendment thereof by the Commission which in the judgment of the Initial
Purchasers would materially impair the ability of the Initial Purchasers to
purchase, hold or effect resales of the Initial Notes as contemplated hereby.
(r) A supplemental indenture to the Indenture dated April 30,
1998, relating to the Issuer's 13% Senior Notes due 2005 shall have been
executed by the Issuer and HSBC Bank USA and delivered to the Initial Purchasers
in form and substance reasonably satisfactory to the Issuer and the Initial
Purchasers.
<PAGE> 21
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(s) The Issuer shall have furnished to the Initial Purchasers
and their counsel such further information, certificates and documents as the
Initial Purchasers may reasonably request to evidence compliance with the
conditions set forth in this Section 6.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel to the Initial Purchasers.
7. Indemnification and Contribution.
(a) The Issuer shall indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Initial
Purchaser, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Offering Memorandum, or in any amendment or supplement
thereto, or in any blue sky application or other document prepared or executed
by the Issuer (or based upon any written information furnished by the Issuer)
specifically for the purpose of qualifying any or all of the Notes under the
securities laws of any state or other jurisdiction (such application, document
or information being hereinafter called a "Blue Sky Application") or (ii) the
omission or alleged omission to state in any Preliminary Offering Memorandum or
the Offering Memorandum, or in any amendment or supplement thereto, or in any
Blue Sky Application or in any material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Initial Purchaser and each such officer, employee and controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Initial Purchaser, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Offering Memorandum or the Offering Memorandum, or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Issuer by
any Initial Purchaser specifically for inclusion therein and described in
Section 7(e). The foregoing indemnity agreement is in addition to any liability
which the Issuer may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Issuer, each of its respective officers and
directors, and each person, if any, who controls the Issuer within the meaning
of the Securities Act from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Issuer or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon,
<PAGE> 22
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(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state therein any material fact
required to be stated in any Preliminary Offering Memorandum or the Offering
Memorandum, or in any Blue Sky Application, or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the written information furnished to the
Issuer through the Initial Purchasers specifically for inclusion therein and
described in Section 7(e), and shall reimburse the Issuer and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Issuer or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Initial
Purchaser may otherwise have to the Issuer or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or
<PAGE> 23
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circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel, if necessary) at any
time for all such indemnified parties, which firm shall be designated in writing
by Lehman Brothers Inc., if the indemnified parties under this Section 7 consist
of any Initial Purchasers or any of their respective officers, employees or
controlling persons, or by the Issuer, if the indemnified parties under this
Section consist of the Issuer or any of its directors, officers, employees or
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (a) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment. Notwithstanding the
foregoing, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Issuer on the one hand and the Initial Purchasers on the other
from the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Issuer on the one hand and the Initial Purchasers
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer on the one hand and the Initial Purchasers on the other with respect to
such offering shall be deemed to be in the same
<PAGE> 24
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proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Issuer on the
one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Notes purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Notes
under this Agreement, in each case as set forth in the table on the cover page
of the Offering Memorandum. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Issuer or the Initial Purchasers, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Issuer and the Initial Purchasers agree that it
would not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective purchase obligations and not joint.
(e) The Initial Purchasers severally confirm that the
statements with respect to the offering of the Initial Notes set forth in the
fourth, sixth, seventh and eighth paragraphs under the caption "Plan of
Distribution" in the Offering Memorandum are correct and constitute the only
information furnished in writing to the Issuer by or on behalf of the Initial
Purchasers specifically for inclusion in the Offering Memorandum.
8. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the aggregate
principal amount of Initial Notes which the defaulting Initial Purchaser agreed
but failed to purchase on the Closing Date in the respective proportions which
the total aggregate principal amount of Initial Notes set opposite the name of
each remaining non-defaulting Initial Purchaser in Schedule 1 hereto bears to
the total aggregate principal amount of Notes set opposite the names of all the
remaining non-defaulting Initial Purchasers in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Initial Purchasers shall not be
obligated to purchase any Initial Notes on the Closing Date if the total
aggregate principal amount of Initial Notes which the defaulting Initial
Purchasers agreed but failed to purchase on such date exceeds 9.09% of the total
aggregate principal amount at maturity of Initial Notes to be purchased on the
Closing Date, and any remaining non-defaulting Initial Purchaser shall not be
obligated to purchase more than 110% of the aggregate principal amount at
maturity of Initial Notes which it agreed to purchase on the Closing Date
pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the
remaining non-defaulting Initial Purchasers, or those
<PAGE> 25
25
other underwriters satisfactory to the Initial Purchasers who so agree, shall
have the right, but shall not be obligated, to purchase on the Closing Date, in
such proportion as may be agreed upon among them, the total aggregate principal
amount of Initial Notes to be purchased on the Closing Date. If the remaining
Initial Purchasers or other underwriters satisfactory to the Initial Purchasers
do not elect to purchase on the Closing Date the aggregate principal amount of
Initial Notes which the defaulting Initial Purchasers agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchasers and the Issuer, except that the Issuer will
continue to be liable for the payment of expenses to the extent set forth in
Sections 5 and 10. As used in this Agreement, the term "Initial Purchaser"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 8, purchases Initial Notes which a defaulting Initial Purchaser agreed
but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Issuer for damages caused by its
default. If other underwriters are obligated or agree to purchase the Initial
Notes of a defaulting or withdrawing Initial Purchaser, either the remaining
non-defaulting Initial Purchasers or the Issuer may postpone the Closing Date
for up to seven full business days in order to effect any changes that in the
opinion of counsel to the Issuer or counsel to the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement.
<PAGE> 26
26
9. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers by notice given to and
received by the Issuer prior to delivery of and payment for the Initial Notes
if, prior to that time, any of the events described in Sections 6(l) and (m)
shall have occurred or if the Initial Purchasers shall decline to purchase the
Initial Notes for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If this
Agreement shall be terminated pursuant to Section 9, then the Issuer shall
reimburse the Initial Purchasers for fees and expenses of their counsels and for
such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Initial Notes,
and upon demand the Issuer shall pay the full amount thereof to the Initial
Purchasers and the Issuer shall have no further liability to the Initial
Purchasers except as provided in Sections 5 and 7.
11. Notices, etc. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail (registered or certified, return receipt requested),
telecopier, or air courier guaranteeing overnight delivery to the persons and
addresses set forth below or to such other persons or addresses as may be
designated by notice to the other parties by like notice.
(a) if to the Company:
139 Centre Street
New York, New York 10013
Attention: Marc Bell
Facsimile: (212) 334-8509
With a copy to:
Milberg Weiss
Bershad Hynes & Lerach LLP
One Pennsylvania Plaza
New York, New York 10119
Attention: Arnold N. Bressler, Esq.
Facsimile: (212) 868-1229
(b) if to the Initial Purchasers:
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Syndicate Department
Facsimile: (212) 528-6395.
<PAGE> 27
27
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Andrew Keller, Esq.
Facsimile: (212) 455-2502
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Issuer and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements of the Issuer
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each Initial Purchaser and the person or persons, if
any, who control each Initial Purchaser within the meaning of Section 15 of the
Securities Act and any indemnity agreement of the Initial Purchasers contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Issuer, and any person controlling the
Issuer within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Issuer and the Initial Purchasers contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Initial Notes and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
14. Definition of the Terms "Business Day", "Subsidiary" and
"Material Subsidiary". For purposes of this Agreement, the term "business day"
means any day other than a Saturday or Sunday or any federal holiday in the
United States, the term "subsidiary" has the meaning set forth in Rule 405 of
the Rules and Regulations and the term "material subsidiary" means (i) any
"significant subsidiary" as defined in Rule 405 of the Rules and Regulations,
(ii) any subsidiary whose assets equal or exceed $1.0 million and (iii) any
subsidiary with respect to which the Issuer is required by contract, law or
otherwise to make additional capital contributions.
<PAGE> 28
28
15. Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
<PAGE> 29
If the foregoing correctly sets forth the agreement among the
Issuer and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GLOBIX CORPORATION
By_______________________________
Name:
Title:
Accepted and agreed by:
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
ING BARINGS LLC
By: LEHMAN BROTHERS INC.
By_______________________________________
Authorized Representative
<PAGE> 30
SCHEDULE 1
<TABLE>
<CAPTION>
Principal Amount
Initial Purchasers of Initial Notes
- ------------------ ----------------
<S> <C>
Lehman Brothers Inc............................................ $ 320,000,000
Chase Securities Inc........................................... $ 60,000,000
Credit Suisse First Boston Corporation......................... $ 60,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................................... $ 60,000,000
Salomon Smith Barney Inc....................................... $ 60,000,000
ING Barings LLC................................................ $ 40,000,000
-------------
Total................................................. $ 600,000,000
=============
</TABLE>
<PAGE> 31
EXHIBIT A
Form of Opinion of Milberg Weiss Bershad Hynes & Lerach LLP
<PAGE> 32
EXHIBIT B
Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
(i) The Initial Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Offering Memorandum;
(ii) the statements made in the Offering Memorandum under the caption "Certain
U.S. Federal Income Tax Consequences to Non-U.S. Persons insofar as they purport
to constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
<PAGE> 33
EXHIBIT C
Form of Opinion of Taylor Joynson & Garret
<PAGE> 34
EXHIBIT D
Form of Opinion of Jeffrey Green Russell
<PAGE> 35
ANNEX A
FORM OF REGISTRATION RIGHTS AGREEMENT
<PAGE> 1
Exhibit 20.1
GLOBIX ANNOUNCES PRICING OF NEW 12.5% SENIOR NOTES DUE 2010
NEW YORK, January 28, 2000 - Globix Corporation (NASDAQ: GBIX) today announced
that it has entered into an agreement to sell $600 million of 12.5% Senior Notes
due 2010 in a private placement to a group of initial purchasers. The offering
will be made within the United States to qualified institutional buyers and
outside the United States to non-U.S. investors.
The Company stated that it intends to use the proceeds of the offering to
purchase any and all of its 13% Senior Notes due 2005, for further expansion of
the Company's data centers and network infrastructure and for other general
corporate purposes.
The new Senior Notes to be offered have not been registered under the Securities
Act of 1933, as amended, or any state securities laws, and, unless so
registered, may not be offered or sold in the United States except pursuant to
an exemption from, or in a transaction not subject to the registration
requirements of the Securities Act and applicable state securities laws.
This press release does not constitute an offer to sell or the solicitation of
any offer to buy any security and shall not constitute an offer, solicitation or
sale in any jurisdiction in which such offering would be unlawful.
This press release contains forward-looking statements. Actual results could
differ materially from those projected in the forward-looking statements.
Additional information concerning factors that could cause actual results to
differ materially from those in the forward-looking statements is contained
under the heading of Risk Factors listed from time to time in the Company's
filings with the Securities and Exchange Commission.
<PAGE> 1
Exhibit 20.2
GLOBIX CORPORATION TO COMMENCE CASH TENDER OFFER FOR 13% SENIOR NOTES DUE 2005
NEW YORK, February 7, 2000 - Globix Corporation (NASDAQ: GBIX) today announced
that it will commence an offer to purchase, pursuant to an Offer to Purchase,
any and all of its outstanding $160 million principal amount, 13% Senior Notes
due 2005, upon the closing of the sale of the previously announced $600 million
principal amount, 12.5% Senior Notes due 2010. The closing of the 12.5% Senior
Notes is expected to occur on February 8, 2000.
The Offer will expire at 5:00 p.m. New York City time on March 7, 2000, unless
extended. The purchase price per $1,000 principal amount of Notes in the Offer
will be $1,065 plus accrued and unpaid interest from November 1, 1999 to the
date of payment. The Company has received sufficient consents and has amended
the indenture governing the 13% Senior Notes to delete substantially all of the
restrictive covenants.
All tenders will be executed through Lehman Brothers, the exclusive Dealer
Manager for the tender offer. Persons with questions regarding the tender offer
should contact Lehman Brothers at 800-438-3242. Documentation can be obtained by
calling D.F. King & Co., the information agent, at 800-488-8095.
About Globix
Globix Corporation is a leading provider of Internet connectivity and advanced
Internet services for businesses in the United States and Europe. Through its
high-speed, fault-tolerant, fiber-optic network and state-of-the-art Internet
Data Centers in New York City, Santa Clara, CA and London, UK, Globix delivers
superior reliability, security and performance to companies using the Internet
to deploy mission-critical business strategies. Cutting-edge solutions include
Co-Location, Hosting and Dedicated Access. The Applications Services Group at
Globix offers services such as Streaming Media, Electronic Commerce, Solutions
Architecture and Internet Security.
This press release contains forward-looking statements. Actual results could
differ materially from those projected in the forward-looking statements.
Additional information concerning factors that could cause actual results to
differ materially from those in the forward-looking statements is contained
under the heading of Risk Factors listed from time to time in the Company's
filings with the Securities and Exchange Commission.
<PAGE> 1
Exhibit 20.3
GLOBIX CORPORATION ANNOUNCES CLOSING OF $600 MILLION 12.5% SENIOR NOTES OFFERING
NEW YORK, February 8, 2000 - Globix Corporation (NASDAQ: GBIX) today announced
that it has closed its offering of $600 million principal amount, 12.5% Senior
Notes due 2010. As previously announced, the proceeds of this offering will be
used to purchase any and all of the Company's 13% Senior Notes due 2005 under
the terms of a tender offer launched today. The proceeds will also be used to
further expand the Company's data centers and network infrastructure and for
general corporate purposes.
The securities to be offered have not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), or any state securities laws, and
unless so registered, may not be offered or sold in the United States except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and applicable state securities
laws.
This press release does not constitute an offer to sell or the solicitation of
an offer to buy any security and shall not constitute an offer, solicitation or
sale in any jurisdiction in which such offering would be unlawful.
This press release contains forward-looking statements. Actual results could
differ materially from those projected in the forward-looking statements.
Additional information concerning factors that could cause actual results to
differ materially from those in the forward-looking statements is contained
under the heading of Risk Factors listed from time to time in the Company's
filings with the Securities and Exchange Commission.
