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ASIA GLOBAL CROSSING LTD.,
as Company,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
as Guarantors,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee.
INDENTURE
Dated as of October __, 2000
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INDENTURE dated as of October __, 2000, by and among Asia
Global Crossing Ltd., a Bermuda company (the "Company"), the Guarantors (as
herein defined) and United States Trust Company of New York, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
"144A Global Security" means a global security in the form of
Exhibit A-1 hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Securities sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person and not
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Subsidiary of such specified Person, and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person; provided such Indebtedness is existing at the time such asset is
acquired and is not incurred in connection with, or in contemplation of, such
acquisition; provided further that Indebtedness of such Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately
upon the consummation of the transactions by which such Person becomes a
Restricted Subsidiary or is merged or consolidated with or into the Company or
any Restricted Subsidiary or such asset is acquired shall not be Indebtedness.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of
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voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"all or substantially all" shall have the meaning given such
phrase in the Revised Model Business Corporation Act.
"Applicable Premium" means on any redemption date, the greater
of (i) 1.0% of the principal amount of such Note or (ii) the excess of (A) the
present value at such redemption date of (1) the redemption price of such Note
at the first possible redemption date pursuant to Section 3.07(a) hereof or
similar provision contained in any supplemental indenture (such redemption price
being set forth in the table in Section 3.07(a) hereof or such supplemental
indenture) plus (2) all required interest payments due on such Note through such
first possible redemption date (excluding accrued but unpaid interest), computed
using a discount rate equal to the relevant Treasury Rate plus 50 basis points
over (B) the principal amount of such Note, if greater.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary, Euroclear and Clearstream
Banking that apply to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, transfer, conveyance
or other disposition of any assets or rights (including, without limitation, by
way of a sale and leaseback) by the Company or any of its Restricted
Subsidiaries other than sales of inventory in the ordinary course of business
and other than any sale, lease, transfer, conveyance or other disposition of
capacity co-location space, dark fiber, rights of way or other access rights on
any cable system owned, controlled or operated by the Company or any Restricted
Subsidiary or of telecommunications capacity or transmission rights held by the
Company or any Restricted Subsidiary (provided that the sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Sections 4.14 and/or the provisions of Section 5.01 hereof and not
by the provisions of Section 4.10 hereof), and (ii) the issue or sale by the
Company or any of its Restricted Subsidiaries of Equity Interests of its
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $25.0 million or (b) for Net Proceeds in excess of $25.0
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a Restricted Payment that
is permitted by Section 4.07 hereof, (iv) a transfer of assets by the Company or
a Restricted Subsidiary in connection with a Qualified Receivables Transaction,
(v) a disposition of obsolete, damaged or worn out property or equipment that is
no longer useful in the conduct of the business of the Company or any of its
Restricted Subsidiaries, (vi) a disposition of Cash Equivalents or investment
grade securities, (vii) transfers constituting the grant of a Permitted Lien and
(viii) the lease or sub-lease of any real or personal property in the ordinary
course of business.
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"Asset Sale Offer" shall have the meaning set forth in Section
4.10.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law or any similar provisions of Bermuda law for the relief of
debtors.
"Board of Directors" means the board of directors or other
governing body of the Company or, if the Company is owned or managed by a single
entity, the board of directors or other governing body of such entity, or, in
either case, any committee thereof duly authorized to act on behalf of such
board or governing body.
"Board Resolution" means a duly authorized resolution of the
Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, Japanese
Yen, Euros and British Pounds Sterling (and foreign currency exchanged into such
currencies within 180 days), (ii) 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 not more than twelve
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of twelve months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding twelve months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500 million, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having one of the two highest ratings obtainable
from Moody's Investors Service, Inc. or Standard & Poor's Corporation and in
each case maturing within twelve 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)-(v) of this definition.
"Change of Control" means the occurrence of any of the
following: (i) any
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"person" (as such term is used in Section 13(d)(3) of the Exchange Act), other
than a Permitted Holder, is or becomes the beneficial owner, directly or
indirectly, of more than 50% of the Voting Stock (measured by voting power
rather than number of shares) of the Company and the Permitted Holders do not
have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the Company (for
the purposes of this clause, such other person shall be deemed to "beneficially
own" any Voting Stock of a specified corporation held by a parent corporation if
such other person beneficially owns, directly or indirectly, more than 50% of
the Voting Stock (measured by voting power rather than by number of shares) of
such parent corporation and the Permitted Holders beneficially own, directly or
indirectly, in the aggregate a lesser percentage of Voting Stock (measured by
voting power rather than by number of shares) of such parent corporation and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of such parent
corporation), (ii) during any period of two consecutive years, Continuing
Directors cease for any reason to constitute a majority of the Board of
Directors of the Company, (iii) the Company consolidates or merges with or into
any other Person, other than a consolidation or merger (a) of the Company into a
Restricted Subsidiary of the Company or (b) pursuant to a transaction in which
the outstanding Voting Stock of the Company is changed into or exchanged for
cash, securities or other property with the effect that no Person, other than a
Permitted Holder, owns more than 50% of the Voting Stock (measured by voting
power rather than number of shares) of the surviving corporation immediately
following such transaction or (iv) the sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole to any Person of which
more than 50% of its Voting Stock (measured by voting power rather than by
number of shares) is owned, directly or indirectly, following such transaction
or transactions by a Person other than the Permitted Holders; provided, however,
that sales, transfers, conveyances or other dispositions in the ordinary course
of business of capacity, co-location space, dark fiber, rights of way or other
access rights on cable systems owned, controlled or operated by the Company or
any Restricted Subsidiary or of telecommunications capacity or transmission
rights acquired by the Company or any Restricted Subsidiary for use in its
business, including, without limitation, for sale, lease, transfer, conveyance
or other disposition to any customer of the Company or any Restricted Subsidiary
shall not be deemed a disposition of assets for purposes of this clause (iv).
The definition of a Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Restricted Subsidiaries taken as a whole.
Although there is a developing body of case law interpreting the phrase
"substantially all," there is no precise established definition of such phrase
under applicable law. Accordingly, the ability of a Holder of Securities to
require the Company to purchase such Securities as a result of a sale, lease,
transfer, conveyance or other disposition of less than all of the assets of the
Company and its Restricted Subsidiaries taken as a whole to another Person or
group may be uncertain.
"Clearstream Banking" means Clearstream Banking, a limited
liability company (societe anonyme) organized under Luxembourg law.
"Company" means Asia Global Crossing Ltd., and any and all
successors
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thereto.
"Consolidated Capital Ratio" means, with respect to the
Company or any of its Restricted Subsidiaries, as of the date of any incurrence
of Indebtedness or issuance of Disqualified Stock or Preferred Stock, the ratio
of (i) the aggregate consolidated principal amount of Indebtedness outstanding
and the liquidation preference of Disqualified Stock as of the most recent
quarterly or annual balance sheet date, after giving pro forma effect to the
incurrence of such Indebtedness or the issuance of such Disqualified Stock and
any other Indebtedness incurred and Disqualified Stock issued since such balance
sheet date, and the receipt and application of the proceeds therefrom to (ii)
Consolidated Net Worth as of such balance sheet date after giving pro forma
effect to the issuance or sale of Equity Interests (other than Disqualified
Stock) (including Equity Interests (other than Disqualified Stock) that have
been issued upon conversion or exchange of any Indebtedness of the Company or
any Restricted Subsidiary), since the balance sheet date and the receipt and
application of the proceeds therefrom.
"Consolidated Cash Flow" means, with respect to the Company
for any period, the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period plus, to the extent that any of the following items
were deducted or added (without duplication) in computing such Consolidated Net
Income, (i) an amount equal to any extraordinary loss (less any extraordinary
gain) plus any net loss (less any gain) realized in connection with any Asset
Sale, plus (ii) provision for taxes based on income or profits of the Company
and its Restricted Subsidiaries for such period, plus (iii) Consolidated
Interest Expense of the Company and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized, plus (iv) any fees,
expenses or charges related to any Equity Offering, Permitted Investment,
acquisition or recapitalization or Indebtedness permitted to be incurred under
this Indenture (whether or not successful), plus (v) the amount of any non-cash
restructuring charge (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period), plus
(vi) depreciation, amortization (including amortization of goodwill and other
intangibles and the amount of capacity available for sale charged to cost of
sales), but excluding amortization of prepaid cash expenses that were paid in a
prior period) and other non-cash expenses (excluding any such non-cash expense
to the extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense that was paid in a
prior period) of the Company and its Restricted Subsidiaries for such period,
minus (vii) non-cash items increasing such Consolidated Net Income of the
Company and its Restricted Subsidiaries for such period (other than items that
were accrued in the ordinary course of business or that represent the reversal
of any accrual of, or cash reserve for, anticipated cash charges in any prior
period)), plus (viii) any change in Deferred Revenue, in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company only to the extent that a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior governmental approval (that
has not been obtained), and without direct or indirect restriction
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pursuant to the terms of its charter and all agreements (excluding agreements
evidencing Indebtedness incurred in accordance with clause (k) of Section 4.09
hereof, to which this provision shall not apply), instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to that
Restricted Subsidiary or its shareholders, unless such restriction with respect
to the payment of dividends or similar distributions has been legally waived.
"Consolidated Interest Expense" for any Person means for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person and its
Restricted Subsidiaries for such period, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i)
amortization of debt issuance costs and original issue discount, (ii) non-cash
interest payments, (iii) the interest component of any deferred payment
obligations, (iv) the interest component of all payments associated with Capital
Lease Obligations, (v) commissions, discounts and other fees and charges
incurred in respect of Letter of Credit or bankers' acceptance financings and
(vi) net payments (if any) pursuant to Hedging Obligations.
"Consolidated Leverage Ratio" means, with respect to the
Company or any of its Restricted Subsidiaries, as of the date of any incurrence
of Indebtedness or issuance of Disqualified Stock or Preferred Stock, the ratio
of (i) the aggregate consolidated principal amount of Indebtedness outstanding
and the liquidation preference of Disqualified Stock as of the most recent
quarterly or annual balance sheet date, after giving pro forma effect to the
incurrence of such Indebtedness or the issuance of such Disqualified Stock and
any other Indebtedness incurred and Disqualified Stock issued since such balance
sheet date, and the receipt and application of the proceeds therefrom to (ii)
Consolidated Cash Flow for the four full fiscal quarters ending on or prior to
the date of incurrence of such Indebtedness or issuance of such Disqualified
Stock for which consolidated financial statements are available.
"Consolidated Net Income" means, with respect to the Company
for any period, the aggregate of the net income of the Company and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, plus, to the extent that any of the following items were
deducted in computing such Consolidated Net Income, (a) non-recurring, non-cash
charges (other than charges arising from write-downs of assets) and (b) non-cash
compensation charges arising from stock options or other similar employee
benefit or compensation Plans; provided that (i) the net income (but not loss)
of any Restricted Subsidiary that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash (or if not in cash, to the extent actually converted
into cash) to the Company or a Restricted Subsidiary thereof by such Restricted
Subsidiary, (ii) the net income (or loss) of any Person that is not a Restricted
Subsidiary or Unrestricted Subsidiary shall be included only to the extent of
the amount of dividends or other distributions actually paid to the Company or a
Restricted Subsidiary by such Person during such period, (iii) for purposes of
clause (c) of Section 4.07 hereof, the net income of any Restricted Subsidiary
shall be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that net income is not at
the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the
terms of its charter or any
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agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its shareholders, unless
such restriction with respect to the payment of dividends or similar
distributions has been legally waived and except that the Company's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash that
could have been distributed by such Restricted Subsidiary during such period to
the Company or another Restricted Subsidiary as a dividend, (iv) the net income
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded, (v) the equity of the
Company or any Restricted Subsidiary in the net income of any Unrestricted
Subsidiary shall be included in such Consolidated Net Income up to the aggregate
amount of cash (or if not in cash, to the extent actually converted into cash)
actually distributed by such Unrestricted Subsidiary during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution (but not
in excess of the amount of the net income of such Unrestricted Subsidiary for
such period) and (vi) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to the Company as
of any date, without duplication, the sum of (i) the consolidated equity of the
common shareholders of the Company and its consolidated Restricted Subsidiaries
as of such date plus (ii) the respective amounts reported on the Company's
balance sheet as of such date with respect to any series of Preferred Stock
(other than Disqualified Stock) that by its terms is not entitled to the payment
of dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by the Company upon issuance of such Preferred
Stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owned by
the Company or a consolidated Restricted Subsidiary of the Company, (y) all
investments as of such date in unconsolidated Restricted Subsidiaries and in
Persons that are not Restricted Subsidiaries, and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such date, all of
the foregoing determined in accordance with GAAP.
"Consolidated Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible items) which
under GAAP would be included on a consolidated balance sheet of the Company and
its Restricted Subsidiaries after deducting therefrom all Investments, goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, which in each case under GAAP would be included on such
consolidated balance sheet; provided that with respect to a Restricted
Subsidiary that is not a Wholly Owned Restricted Subsidiary, its assets shall
only be included to the extent of the Company's percentage ownership of such
Restricted Subsidiary.
"Continuing Directors" means individuals who at the beginning
of the period of determination constituted the Board of Directors of the Company
together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company was approved by
a vote of at least a majority of the directors of the Company then still in
office who were either directors at the beginning of such period or
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whose election or nomination for election was previously so approved or is a
designee of any one of the Permitted Holders or any combination thereof or was
nominated or elected by any such Permitted Holder(s) or any of their designees.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Facilities" is defined to mean one or more senior
credit agreements, senior loan agreements or similar senior facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or Letters of Credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement as
to which such Person is a party or beneficiary.
"Debt Securities" means any bonds, notes, debentures or other
similar instruments (excluding, in any event, (i) any Capital Lease Obligations
and (ii) any notes, bankers' acceptances or other instruments evidencing
commercial loans or equipment financing made by, and bills of exchange drawn on,
banks, other financial lending institutions or equipment vendors) issued by the
Company or by any Restricted Subsidiary (including by means of any Guarantee of
the Company or of any Restricted Subsidiary of securities of another Person),
whether in a public offering or private placement; provided, however, that in no
event shall "Debt Securities" mean Indebtedness in the form of a bank credit
facility.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Deferred Revenue" means amounts appearing as a liability on
the financial statements of the Company and its Restricted Subsidiaries as
prepared in accordance with GAAP classified as deferred revenue to the extent of
cash received in connection therewith.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A-1 hereto except that such Note shall not bear the Global
Security Legend and shall not have the "Schedule of Exchanges of Interests in
the Global Security" attached thereto.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Securities, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Designated Noncash Consideration" means the noncash
consideration received
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by the Company or any of its Restricted Subsidiaries in connection with an Asset
Sale that is so designated in an Officers' Certificate, less the amount of cash
or Cash Equivalents received in connection with a subsequent sale of such
Designated Noncash Consideration.
"Designated Preferred Stock" means Preferred Stock of the
Company (other than Disqualified Stock) that is issued for cash (other than to a
Restricted Subsidiary) and is so designated as Designated Preferred Stock,
pursuant to an Officers' Certificate, on the issuance date thereof.
"Disinterested Directors" means the non-management members of
the Board of Directors who have no relationship or interest in a particular
transaction other than their position as a director or shareholder of the
Company.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Securities mature; provided, however, that any
Capital Stock which would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require the Company to repurchase or
redeem such Capital Stock upon the occurrence of a Change of Control or an Asset
Sale occurring prior to the final Stated Maturity of the Securities shall not
constitute Disqualified Stock if the change of control and asset sale provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions applicable to the Securities contained in
Sections 4.10 and 4.14 hereof, respectively, and such Capital Stock specifically
provides that the Company will not repurchase or redeem any such stock pursuant
to such provisions prior to the Company's repurchase of such Securities as are
required to be repurchased pursuant to Sections 4.10 and 4.14 hereof,
respectively; provided further, however, that if such Capital Stock is issued to
any employee or to any Plan for the benefit of employees of the Company or its
Subsidiaries or by any such Plan to such employees, such Capital Stock shall not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee's death or disability.
"Eligible Accounts Receivable" means the accounts receivables
(net of any reserves and allowances for doubtful accounts in accordance with
GAAP) of any Person and its Restricted Subsidiaries (determined on a
consolidated basis) that are not more than 90 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 consolidated balance sheet of such Person filed with
the Commission, all in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offering for cash by the Company of
its common
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stock or Preferred Stock (other than Disqualified Stock), or options, warrants
or rights to acquire such common stock or Preferred Stock.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the Securities issued in the
Exchange Offer pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the applicable
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the applicable Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries in existence on the date hereof, until such amounts
are repaid.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's length transaction between a willing
seller and a willing buyer, neither of whom is under pressure or compulsion to
complete the transaction. Unless otherwise specified in this Indenture, Fair
Market Value shall be determined by the Board of Directors acting in good faith,
shall be evidenced by a resolution of the Board of Directors delivered to the
trustee, and shall be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if such
value exceeds $50.0 million.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date hereof.
"GAL Subsidiaries" means Global Access Limited, a Japanese
company, and all of its direct and indirect Subsidiaries.
"Global Security Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Securities issued
under this Indenture.
"Global Securities" means, individually and collectively, each
of the Restricted Global Securities and the Unrestricted Global Securities, in
the form of Exhibit A-1 or A-2 hereto issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"Government Securities" means securities that are (a) direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of
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12
America (including any agency or instrumentally thereof) of the payment of which
the full faith and credit of the United States of America is pledged, (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or (c) obligations of a Person the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in each case, are not callable or redeemable at the
issuer's option, 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 Government Securities or a specific payment of principal of or
interest on any such Government Securities 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 Government Securities or the specific payment
of principal of or interest on the Government Securities evidenced by such
depository receipt.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Guarantors" means each Person that from time to time executes
a Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any Interest Rate Agreement or Currency
Agreement.
"HGC Subsidiaries" means Hutchison Global Crossing Holdings
Limited, a British Virgin Islands Company, and all of its direct and indirect
Subsidiaries.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, Securities, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof) or bankers'
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all Indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
Indebtedness is assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due,
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13
in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"Initial Purchaser" shall have the meaning assigned to such
term in the applicable Offering Memorandum.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or
beneficiary.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding accounts receivable,
trade credit and commission, travel and similar advances to directors, officers
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company or such Restricted Subsidiary, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value (or if the sale or disposition is
other than for cash, the Fair Market Value) of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.07 hereof.
"Issue Date" means the applicable closing date for the sale
and original issuance of Notes of the applicable series under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Securities for use by
such Holders in connection with the Exchange Offer.
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"Letters of Credit" means one or more irrevocable direct pay
letters of credit issued by a bank or other financial institution to support the
payment of obligations of the Company.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in, and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction); provided that in no event shall an operating lease be deemed to
constitute a Lien.
"Management Advances" means loans or advances made to
directors, officers or employees of the Company or any Restricted Subsidiary (i)
in respect of travel, entertainment or moving-related expenses incurred in the
ordinary course of business, (ii) in respect of moving-related expenses incurred
in connection with any closing or consolidation of any facility, or (iii) in the
ordinary course of business not exceeding $2.5 million in the aggregate at any
time outstanding.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale or any sale
of Equity Interests permitted under Section 4.18), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any Restricted Subsidiary (a) provides any guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect
to the Securities in global form, or any successor entity thereto.
"Securities" has the meaning assigned to it in the preamble to
this Indenture.
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15
"Notes Due 2010" has the meaning assigned to it in Section
2.01(a).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
.
"Offering Memorandum" means the Offering Memorandum, dated
_________, 2000, with respect to the Notes Due 2010, or the applicable offering
memorandum pursuant to which Securities of the same or any other series were
offered and sold.
"Officer" means the President, the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer, any Senior Vice
President, any Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Pari Passu Debt Securities" means any Debt Securities of the
Company or of any Guarantor which ranks pari passu in right of payment with the
Securities and any Guarantees, as applicable.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream Banking, a Person who has an account with the Depositary,
Euroclear or Clearstream Banking, respectively (and, with respect to The
Depository Trust Company, shall include Euroclear and Clearstream Banking).
"PC-1 Subsidiaries" means Pacific Crossing Ltd., a Bermuda
company, and all of its direct and indirect Subsidiaries.
"Permitted Business" means any business that is the same as or
related, ancillary or complementary to any of the businesses of the Company or
any of its Restricted Subsidiaries on the date hereof.
"Permitted Holder" means Global Crossing Ltd., Microsoft
Corporation, Softbank Corp. and their respective Affiliates.
"Permitted Investments" means (a) any Investment in the
Company or in any Restricted Subsidiary that is engaged in a Permitted Business;
(b) any Investment in Cash Equivalents; (c) any Investment by the Company or any
of its Restricted Subsidiaries in a Person, if as a result of such Investment
(i) such Person becomes a Restricted Subsidiary of the Company that is engaged
in a Permitted Business or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company that is
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engaged in a Permitted Business; (d) any Investment that is non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10 hereof; (e) any Investment made in a Receivables Entity in a
Qualified Receivables Transaction; (f) loans, advances or extensions of credit
to employees in the ordinary course of business; (g) obligations under Hedging
Agreements; (h) any Investment made prior to the Issue Date; (i) stock,
obligations or securities received in satisfaction of judgments in connection
with any bankruptcy proceeding or otherwise; and (j) additional Investments in
an aggregate amount not to exceed $150 million.
"Permitted Liens" means (i) Liens to secure Indebtedness
(other than Pari Passu Debt Securities or Subordinated Indebtedness) permitted
to be incurred under this Indenture; (ii) Liens in favor of the Company or any
Restricted Subsidiary; (iii) Liens on property of a Person existing at the time
such Person is merged with or into or consolidated with the Company or any of
its Restricted Subsidiaries; provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or such Restricted Subsidiary; (iv) Liens on property existing at the
time of acquisition thereof by the Company or any of its Restricted
Subsidiaries, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the date of this Indenture; (vii) Liens for taxes, assessments
or governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens incurred in the ordinary course of business of the Company or any
of its Restricted Subsidiaries with respect to obligations that do not exceed
$5.0 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary; (ix) Liens with respect to assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a Restricted
Subsidiary to secure Indebtedness owing to the Company or such Restricted
Subsidiary; (x) Liens, pledges and deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of statutory obligations; (xi) Liens, pledges or deposits made to
secure the performance of tenders, bids, leases, public or statutory
obligations, sureties, stays, appeals, indemnities, performance or other similar
bonds and other obligations of like nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money); (xii)
zoning restrictions, servitudes, easements, rights-of-way, restrictions and
other similar charges or encumbrances incurred in the ordinary course of
business which, in the aggregate, do not materially detract from the value of
the property subject thereto or materially interfere with the ordinary conduct
of the business of the Company or its Restricted Subsidiaries; (xiii) Liens
arising out of judgments or awards against or other court proceedings concerning
the Company or any Restricted Subsidiary with respect to which the Company or
such Restricted Subsidiary is prosecuting an appeal or proceeding for review and
the Company or such Restricted Subsidiary is maintaining
<PAGE> 17
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adequate reserves in accordance with GAAP; (xiv) any interest or title of a
lessor in the property subject to any lease other than a capital lease; (xv)
Liens (including extensions and renewals thereof) upon real or personal property
purchased or leased after the Issue Date; provided that (a) such Lien is created
solely for the purpose of securing Indebtedness incurred in compliance with
Section 4.09 (1) to finance the cost of the item of property or assets subject
thereto and such Lien is created prior to, at the time of or within six months
after the later of the acquisition and the incurrence of such Indebtedness or
(2) to refinance any Indebtedness previously so secured, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of such
cost and (c) any such Lien shall not extend to or cover any property or assets
other than such item of property or assets; (xvi) any interest or title of a
lessor in the property subject to any Capitalized Lease or operating lease of a
Restricted Subsidiary which, in each case, is permitted under this Indenture;
(xvii) Liens encumbering customary initial deposits and margin deposits and
other Liens that are either within the general parameters customary in the
industry or incurred in the ordinary course of business, in each case, securing
Indebtedness under Hedging Agreements; and (xviii) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Securities, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is expressly subordinated in
right of payment to, the Securities on terms at least as favorable to the
Holders of the Securities as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; provided, that in no event may Indebtedness of the Company be
refinanced by means of any Indebtedness of any Restricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Plan" means any employee benefit plan, retirement plan,
deferred compensation plan, restricted stock plan, health, life, disability or
other insurance plan or program, employee stock purchase plan, employee stock
ownership plan, pension plan, stock
<PAGE> 18
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option plan or similar plan or arrangement of the Company or any Restricted
Subsidiary, or any successor plan thereof, and "Plans" shall have a correlative
meaning.
"Preferred Stock" of any Person means Capital Stock of such
Person of any or 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.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Securities issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person.
"Purchase Money Indebtedness" means Indebtedness (including
Acquired Debt and Capital Lease Obligations, mortgage financings and purchase
money obligations) incurred for the purpose of financing all or any part of the
cost of construction, financing, installation, acquisition, lease, development,
design, engineering, financing, testing, start-up, upgrade, completion or
improvement of any assets (including licenses) used or useful in a Permitted
Business (including acquisitions of the Capital Stock of a Person that becomes a
Restricted Subsidiary to the extent of the Fair Market Value of the assets used
or useful in a Permitted Business so acquired), including any related
Securities, guarantees, collateral documents, instruments and agreements
executed in connection therewith, as the same may be amended, supplemented,
modified or restated from time to time, provided that the amount of such
Purchase Money Indebtedness does not exceed 100% of the cost of construction,
installation, acquisition, lease, development, design, engineering, financing,
testing, start-up, upgrade, completion or improvement of the assets or Capital
Stock (together with related costs and expenses).
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any receivables (whether now existing or arising in the future) of
the Company or any of its Subsidiaries, and any assets related thereto
including, without limitation, all collateral securing such receivables, all
contracts and all guarantees or other obligations in respect of such
receivables, and the proceeds of such receivables.
"Receivables Entity" means a wholly owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the Company
may make an Investment and to which the Company or any Subsidiary of the Company
transfers receivables
<PAGE> 19
19
and related assets) which engages in no activities other than in connection with
the financing of receivables and which is designated by the Board of Directors
(as provided below) as a Receivables Entity, (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any property
or asset of the Company or any Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which neither the
Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to the
Company or such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing receivables, and (c) to
which neither the Company nor any Subsidiary of the Company has any obligation
to maintain or preserve such entity's financial condition or cause such entity
to achieve certain levels of operating results. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the resolution of the Board of Directors giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Related Taxes" means any taxes, charges or assessments,
including, but not limited to, sales, use, transfer, rental, ad valorem,
value-added, stamp, property, consumption, franchise, license, capital, net
worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges
or assessments.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, with respect to the Notes Due 2010, or
the applicable registration rights agreement, if any, with respect to Securities
of the same or any other series, by and among the Company and the other parties
named on the signature pages thereof, as such agreement may be amended, modified
or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Security" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means a permanent
global Security in the form of Exhibit A-1 hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"Regulation S Temporary Global Security" means a temporary
global Security in the form of Exhibit A-2 hereto bearing the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination
<PAGE> 20
20
equal to the outstanding principal amount of the Securities initially sold in
reliance on Rule 903 of Regulation S.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Broker-Dealer" has the meaning set forth in the
applicable Registration Rights Agreement.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Security" means a Global Security bearing
the Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary; provided, however,
that the Company at its election may also designate any of its Unrestricted
Subsidiaries as a Restricted Subsidiary hereunder.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the applicable Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the Issue Date, of the Company and its Restricted Subsidiaries.
<PAGE> 21
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"Special Interest" means all special interest then owing
pursuant to the applicable Registration Rights Agreement.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in securitization of
receivables transactions.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership, joint venture, limited liability
company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise.
"Trade Payables" is defined to mean any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or guaranteed by the Company or any of its Restricted Subsidiaries
arising in the ordinary course of business in connection with the acquisition of
goods and services.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Treasury Rate" means, as of any date of redemption, the yield
to maturity as of such redemption date of United States Treasury securities with
a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at
least two Business Days prior to the date of redemption (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the date of redemption to _________,
2005; provided, however, that if the period from the date of redemption to
______________, 2005 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor
<PAGE> 22
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serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Securities that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Security" means a permanent global
Security in the form of Exhibit A-1 attached hereto that bears the Global
Security Legend and that has the "Schedule of Exchanges of Interests in the
Global Security" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of
Securities that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt and (b) is a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (c) has not guaranteed or otherwise directly or
indirectly provided credit support for any Debt Securities of the Company or any
of its Restricted Subsidiaries; provided that the Company or a Restricted
Subsidiary may pledge Capital Stock or Indebtedness of any Unrestricted
Subsidiary on a nonrecourse basis for equivalent value such that the pledgee has
no claim whatsoever against the Company or any Restricted Subsidiary other than
to obtain such Capital Stock or Indebtedness. Any such designation by the Board
of Directors shall be evidenced by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted under Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
<PAGE> 23
23
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"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 and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
---- -------
<S> <C>
"Additional Amounts" 3.09
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Authentication Order" 2.02
"Change in Tax Law" 3.08
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"Designation" 4.07
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
</TABLE>
<PAGE> 24
24
<TABLE>
<S> <C>
"Offer Amount" 3.11
"Offer Period" 3.11
"Paying Agent" 2.03
"Permitted Indebtedness" 4.09
"Purchase Date" 3.11
"Registrar" 2.03
"Restricted Payments" 4.07
"Revocation" 4.07
</TABLE>
SECTION 1.03. TRUST INDENTURE ACT DEFINITIONS
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Securities means the Company and any
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it
<PAGE> 25
25
in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2. THE SECURITIES
SECTION 2.01. FORM AND DATING.
(a) General.
The aggregate principal amount of Securities of any series
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The Notes
initially include the ___% Series A Notes Due 2010 and the ____% Series B Notes
Due 2010 (together, the "Notes Due 2010").
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibits A-1 and A-2 hereto. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage or agreements to which the Company is subject. Each Note
shall be dated the date of its authentication. The Securities shall be in
denominations of $1,000 and integral multiples thereof.
The Securities shall be established in or pursuant to a Board
Resolution and, subject to this Section 2.01, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series. All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to this Section 2.01) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. If any of the terms of the
series are established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
The terms and provisions contained in the Securities shall
constitute, and are
<PAGE> 26
26
hereby expressly made, a part of this Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Securities.
Securities issued in global form shall be substantially in the
form of Exhibits A-1 or A-2 attached hereto (including the Global Security
Legend thereon and the "Schedule of Exchanges of Interests in the Global
Security" attached thereto). Securities issued in definitive form shall be
substantially in the form of Exhibit A-1 attached hereto (but without the Global
Security Legend thereon and without the "Schedule of Exchanges of Interests in
the Global Security" attached thereto). Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Securities from time to time endorsed thereon and that the aggregate principal
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Securities represented
thereby shall be made by the Trustee or the Security Custodian, at the direction
of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Securities.
Securities offered and sold in reliance on Regulation S shall
be issued initially in the form of the Regulation S Temporary Global Security,
which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream Banking, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The Restricted Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream
Banking certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the Regulation
S Temporary Global Security (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a beneficial ownership interest in a 144A Global Security
bearing a Private Placement Legend, all as contemplated by Section 2.06(a)(ii)
hereof), and (ii) an Officers' Certificate from the Company. Following the
termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Security shall be exchanged for beneficial interests in
Regulation S Permanent Global Securities pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global
Securities, the Trustee shall cancel the Regulation S Temporary Global Security.
The aggregate principal amount of the Regulation S Temporary Global Security and
the Regulation S Permanent Global Securities may from time to time be increased
or decreased by
<PAGE> 27
27
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) Euroclear and Clearstream Banking Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream Banking" and "Customer Handbook" of
Clearstream Banking shall be applicable to transfers of beneficial interests in
the Regulation S Temporary Global Security and the Regulation S Permanent Global
Securities that are held by Participants through Euroclear or Clearstream
Banking.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature. It is not necessary for the Company's seal to be
impressed, affixed, imprinted or reproduced on the Securities.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers (an "Authentication Order"), authenticate Securities for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Securities. The aggregate principal amount of Securities outstanding at any time
may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where
Securities of each series may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Securities of each series
may be presented for payment ("Paying Agent"). The Registrar for each series of
Securities shall keep a register of the Securities of such series and of their
transfer and exchange. The Company may appoint one or more co-Registrars and one
or more additional paying agents for each series of Securities. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The
<PAGE> 28
28
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Securities.
The Trustee is authorized to enter into a letter of
representations with DTC in the form provided to the Trustee by the Company and
to act in accordance with such letter.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Special Interest, if any, or interest on the
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders, separately by series, and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Securities, separately by series, and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Securities.
A Global Security may not be transferred as a whole except by
the Depositary to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another
<PAGE> 29
29
nominee of the Depositary, the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. All Global Securities of a
series will be exchanged by the Company for Definitive Securities of the same
series if (i) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Securities of such series (in whole but
not in part) should be exchanged for Definitive Securities and delivers a
written notice to such effect to the Trustee; provided that in no event shall a
Regulation S Temporary Global Security be exchanged by the Company for
Definitive Securities prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates determined by the Company
to be required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. Upon
the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Securities shall be issued in such names as the Depositary shall
instruct the Trustee. Global Securities also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Security of
the same series or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Security. A Global Security may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Security may be transferred and exchanged as provided in
Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Securities.
The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Securities may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global
Security may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security of the
same series. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global
<PAGE> 30
30
Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Depositary either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Security of the same
series in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order
from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Note of the same series in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in
(1) above, provided that in no event shall Definitive Securities be
issued upon the transfer or exchange of beneficial interests in a
Regulation S Temporary Global Security prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates determined by the Company to be required pursuant to Rule
903 under the Securities Act. Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f) hereof, the requirements
of this Section 2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Securities. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Securities contained in this Indenture and the Securities or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Security(ies) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Security. A beneficial interest in any Restricted Global
Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Security
of the same series if the transfer complies with the requirements of
Section 2.06(b)(ii) above and the Registrar receives the
following:
(A) if the transferee will take delivery in the form
of a beneficial interest in a 144A Global Security of the same
series, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in a Regulation S Temporary Global
Security of the same series or a Regulation S Global Security
of the same series, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global
<PAGE> 31
31
Security for Beneficial Interests in the Unrestricted Global Security.
A beneficial interest in any Restricted Global Security may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security of the same series or transferred to a
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security of the same series if the exchange
or transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal or via the Depositary's book-entry system that it
is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is
an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Security of the same series, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Security of the same series, a certificate
from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the
<PAGE> 32
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Trustee shall authenticate one or more Unrestricted Global Securities of the
same series in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Security cannot
be exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities to
Restricted Definitive Securities. If any holder of a beneficial
interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Note of the same series
or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note of the same series,
then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Note of the
same series, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
<PAGE> 33
33
instructions a Definitive Note of the same series in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall make available for delivery such Definitive Securities to
the Persons in whose names such Securities are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Security of the same series pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject
to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in a Regulation S Temporary Global Security may not
be exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates determined by the Company to be required
pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities to
Unrestricted Definitive Securities. A holder of a beneficial interest
in a Restricted Global Security may exchange such beneficial interest
for an Unrestricted Definitive Note of the same series or may transfer
such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note of the same series only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Securities or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to exchange
such beneficial interest for a Definitive Note of the same
series that does not bear the Private Placement Legend, a
<PAGE> 34
34
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note of the same series
that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Securities to
Unrestricted Definitive Securities. If any holder of a beneficial
interest in an Unrestricted Global Security proposes to exchange such
beneficial interest for a Definitive Note of the same series or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note of the same series, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Person
designated in the instructions a Definitive Note of the same series in
the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall make available for delivery such Definitive Securities to
the Persons in whose names such Securities are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests.
(i) Restricted Definitive Securities to Beneficial Interests
in Restricted Global Securities. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Security of the same series or to
transfer such Restricted Definitive Securities to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Security of the same series, then, upon receipt by the Registrar
of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Security of the same series, a certificate
from such Holder in the form of Exhibit C hereto, including
the
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certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Security of the
same series, in the case of clause (B) above, the 144A Global Security
of the same series, and in the case of clause (C) above, the Regulation
S Global Security of the same series.
(ii) Restricted Definitive Securities to Beneficial Interests
in Unrestricted Global Securities. A Holder of a Restricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Security of the same series or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Security of
the same series only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
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(C) such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Securities
proposes to exchange such Securities for a beneficial interest in
the Unrestricted Global Security of the same series, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Securities
proposes to transfer such Securities to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security of the same series, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Securities and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security of the same series.
(iii) Unrestricted Definitive Securities to Beneficial Interests
in Unrestricted Global Securities. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an Unrestricted
Global Security of the same series or transfer such Definitive Securities
to a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security of the same series at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the Unrestricted
Global Securities of the same series.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Security of the same series is effected pursuant
to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted
Global Security has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Securities of the
same series in an aggregate principal amount equal to the principal amount of
Definitive Securities so transferred.
(e) Transfer and Exchange of Definitive Securities for Definitive
Securities.
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37
Upon request by a Holder of Definitive Securities and such
Holder's compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Note of the same series if the Registrar receives
the following:
(A) if the transfer will be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Securities to Unrestricted Definitive
Securities. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note of the same series or
transferred to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note of the same series if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange
Securities or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Securities proposes to exchange such Securities for an
Unrestricted Definitive Note of the same series, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Securities proposes to transfer such Securities to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Note of the same series, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities may
transfer such Securities to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note of the same series. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Securities pursuant to the instructions from the
Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate (i) one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Securities of the same series tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal or via the
Depositary's book-entry system that (x) they are not broker-dealers, (y) they
are not participating in a distribution of the Exchange Securities and (z) they
are not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Definitive Securities in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Securities of the same series accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Persons designated by the
Holders of Definitive Securities so accepted Definitive Securities in the
appropriate principal amount.
(g) Legends.
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The following legends shall appear on the face of all Global
Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Security and each Definitive Note (and all Securities
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND
ANNIVERSARY OF THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR
(Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING
THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER
THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (4) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A."
(B) Notwithstanding the foregoing, any Global Security or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legends. Each Global Security shall bear legends
in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
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BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) ("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE 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."
(iii) Regulation S Temporary Global Security Legend. The
Regulation S Temporary Global Security shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(iv) Original Issue Discount Legend. Each Global Security or
Definitive Note issued in respect of Securities issued with original issue
discount shall bear a legend in the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE
PRICE IS $__________, THE AMOUNT OF ORIGINAL ISSUE
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DISCOUNT IS $_________, THE ISSUE DATE IS _______, AND THE YIELD TO
MATURITY ON THE ISSUE DATE IS ____% PER ANNUM."
(h) Cancellation and/or Adjustment of Global Securities.
At such time as all beneficial interests in a particular Global
Security have been exchanged for Definitive Securities of the same series or a
particular Global Security has been redeemed, repurchased or canceled in whole
and not in part, each such Global Security shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security of the same series or
for Definitive Securities of the same series, the principal amount of Securities
represented by such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security of the same series, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Definitive Securities upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.11, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Securities and Definitive Securities issued upon
any registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Securities during a period beginning at
the opening of business 15 days before the day of the mailing of notice of
redemption under Section 3.02 hereof and ending
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at the close of business on such day, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or (c) to
register the transfer of or to exchange a Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Securities and for all other purposes, and none of the Trustee, any
Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
(ix) Each Holder of a Note agrees to indemnify the Trustee and the
Registrar against any liability that may result from the transfer, exchange
or assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
(x) Neither the Trustee nor the Registrar shall have any
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 Note
(including any transfers between or among 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 2.07. REPLACEMENT SECURITIES.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note of the same
series if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities of the same series duly issued
hereunder.
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SECTION 2.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of such series authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Security effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding. Except as set
forth in Section 2.09 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note; however, Securities
held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser or protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of any series have concurred in any direction, waiver or
consent, Securities owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that the
Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until certificates representing Securities are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities of the same series but may
have variations that the Company considers appropriate for temporary Securities
and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities of the same series.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Securities (subject to the record retention requirements
of the Exchange Act). Certification of the destruction of all canceled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on any series of
Securities, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders of such Securities on which interest is due on a subsequent
special record date, in each case at the rate provided in the Securities and in
Section 4.01 hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption 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 the omission of such numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3. REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any series pursuant
to the optional redemption provisions of Section 3.07 hereof, it shall furnish
to the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date,
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(iii) the principal amount of Securities of such series to be redeemed, (iv) the
redemption price and (v) the CUSIP numbers of the Securities of such series to
be redeemed.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series are to be
redeemed or purchased in an offer to purchase at any time, the Trustee shall
select the Securities of such series to be redeemed or purchased among the
Holders of the Securities of such series in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities of
such series are listed or, if the Securities of such series are not so listed,
on a pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Securities of such series to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Securities of such series
not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of Securities selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Securities of a Holder are to be redeemed,
the entire outstanding amount of Securities held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.11 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Securities are to be redeemed at its registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Securities in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be surrendered to
the Paying Agent to
<PAGE> 46
46
collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Securities called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may not
be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE
Prior to 10 a.m. on the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Securities to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Securities or the portions of Securities called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Securities and in Section 4.01 hereof.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon
<PAGE> 47
47
the Company's written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note of the same series equal in principal
amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in Sections 3.07(b) and (c) below and in
Section 3.08 hereof, the Notes Due 2010 shall not be redeemable at the Company's
option prior to ___________ 2005. Thereafter, the Notes Due 2010 shall be
subject to redemption at any time or from time to time at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Special Interest, if any,
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on __________ of the years indicated below:
<TABLE>
<CAPTION>
PERCENTAGE OF
YEAR PRINCIPAL AMOUNT
---- ----------------
<S> <C>
2005................................................
2006................................................
2007................................................
2008 and thereafter.................................
</TABLE>
(b) Notwithstanding the foregoing, at any time prior to
____________, 2003, the Company may, on any one or more occasions, redeem up to
35% of the aggregate principal amount of Notes Due 2010 originally issued
pursuant to this Indenture at a redemption price of ____________% of the
principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date, with the net cash proceeds received from one or more Equity
Offerings made by the Company after the date of this Indenture; provided that at
least 65% of the aggregate principal amount of Securities originally issued
pursuant to this Indenture remain outstanding immediately after the occurrence
of any such redemption. The Company may make any such redemption upon not less
than 30 nor more than 60 days' notice (but in no event more than 90 days after
the closing of the related Equity Offering). Any such notice may be given prior
to the completion of the related Equity Offering and any such redemption may, at
the Company's discretion, be subject to the satisfaction of one or more
conditions precedent, including, but not limited to, the completion of the
related Equity Offering.
(c) In addition, at any time prior to _________, 2005, the Notes
Due 2010 may be redeemed at the option of the Company, in whole but not in part,
upon the occurrence of a Change of Control, upon not less than 30 nor more than
60 days' prior notice (but in no event may any such redemption occur more than
90 days after the occurrence of such Change of Control) mailed by first-class
mail to each Holder's registered address, at a redemption price equal to 100% of
the principal amount thereof plus the Applicable Premium as of, and accrued and
unpaid interest, if any, to, the date of redemption.
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
<PAGE> 48
48
SECTION 3.08. OPTIONAL TAX REDEMPTION.
Each series of Securities will be subject to redemption at the
option of the Company or a successor corporation at any time, in whole but not
in part, upon not less than 30 nor more than 60 days' notice, at a redemption
price equal to the principal amount thereof, plus accrued and unpaid interest
thereon to the redemption date if, as a result of any change in or amendment to
the laws or any regulations or ruling promulgated thereunder of (x) Bermuda or
any political subdivision or governmental authority thereof or therein having
the power to tax, (y) any jurisdiction, other than the United States, from or
through which payment on the Securities is made by the Company or a successor
corporation, or its paying agent in its capacity as such or any political
subdivision or governmental authority thereof or therein having the power to tax
or (z) any other jurisdiction, other than the United States, in which the
Company or a successor corporation is organized, or any political subdivision or
governmental authority thereof or therein having the power to tax, or any change
in the official application or interpretation of such laws, regulations or
rulings, or any change in the official application or interpretation of, or any
execution of or amendment to, any treaty or treaties affecting taxation to which
such jurisdiction (or such political subdivision or taxing authority) is a party
(a "Change in Tax Law"), which becomes effective on or after the date of the
Offering Memorandum, the Company or a successor corporation is or would be
required on the next succeeding interest payment date to pay Additional Amounts
with respect to such series of Securities (as described under Section 3.09
hereof), and the payment of such Additional Amounts cannot be avoided by the use
of any reasonable measures available to the Company or a successor corporation.
In addition, each series of Securities will be subject to
redemption at the option of the Company at any time, in whole but not in part,
upon not less than 30 nor more than 60 days' notice, at a redemption price equal
to the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date, if the Person formed by a consolidation or amalgamation of the
Company or into which the Company is merged or to which the Company conveys,
transfers or leases its properties and assets substantially as an entirety is
required, as a consequence of such consolidation, amalgamation, merger,
conveyance, transfer or lease and as a consequence of a Change in Tax Law
occurring after the date of such consolidation, amalgamation, merger,
conveyance, transfer or lease, to pay Additional Amounts in respect of any tax,
assessment or governmental charge imposed on any Holder of such series of
Securities.
SECTION 3.09. PAYMENT OF ADDITIONAL AMOUNTS.
If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having power to tax,
(y) any jurisdiction, other than the United States, from or through which
payment on any series of Securities is made by the Company or a successor
corporation, or its paying agent in its capacity as such or any political
subdivision or governmental authority thereof or therein having the power to tax
or (z) any other jurisdiction, other than the United States, in which the
Company or a successor corporation is organized, or any political subdivision or
governmental authority thereof or therein having the power to tax shall at any
time be required by such jurisdiction (or any such political subdivision or
taxing
<PAGE> 49
49
authority) in respect of any amounts to be paid by the Company or a successor
corporation under any series of Securities, the Company or a successor
corporation will pay to each Holder of such series of Securities as additional
interest, such additional amounts ("Additional Amounts") as may be necessary in
order that the net amounts paid to such holder of such Securities who, with
respect to any such tax, assessment or other governmental charge, is not
resident in, or a citizen of, such jurisdiction, after such deduction or
withholding, shall not be less than the amount specified in such Securities to
which such Holder is entitled; provided, however, that the Company or a
successor corporation shall not be required to make any payment of Additional
Amounts for or on account of:
(a) Any tax, assessment or other governmental charge that would
not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
Holder, if such Holder is an estate, trust, partnership, limited liability
company or corporation) and the taxing jurisdiction or any political
subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) being or
having been a citizen or resident thereof or being or having been present
or engaged in a trade or business therein or having or having had a
permanent establishment therein, (ii) the presentation of a Note (where
presentation is required) for payment on a date more than 30 days after (x)
the date on which such payment became due and payable or (y) the date on
which payment thereof is duly provided for, whichever occurs later, or
(iii) the presentation of a Note for payment in Bermuda or any political
subdivision thereof or therein, unless such Note could not have been
presented for payment elsewhere;
(b) Any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
(c) Any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payment of principal of,
premium, if any, or any interest on the Securities;
(d) Any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the
beneficial owner of the Note to comply with a request of the Company
addressed to the Holder (i) to provide information, documents or other
evidence concerning the nationality, residence or identity of the Holder or
such beneficial owner or (ii) to make and deliver any
declaration or other similar claim (other than a claim for refund of a tax,
assessment or other governmental charge withheld by the Company) or satisfy
any information or reporting requirements, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(e) Any combination of items (a), (b), (c) and (d) above;
nor shall Additional Amounts be paid with respect to any payment
of the principal of, or
<PAGE> 50
50
any premium or interest on, any Note to any Holder who is a fiduciary or
partnership or limited liability company or other than the sole beneficial owner
of such payment to the extent such payment would be required by the laws of (x)
Bermuda or any political subdivision or governmental authority thereof or
therein having the power to tax, (y) any jurisdiction, other than the United
States, from or through which payment on the Securities is made by the Company
or a successor corporation, or its paying agent in its capacity as such or any
political subdivision or governmental authority thereof or therein having the
power to tax or (z) any other jurisdiction, other than the United States, in
which the Company or a successor corporation is organized, or any political
subdivision or governmental authority thereof or therein having the power to tax
to be included in the income for tax purposes of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership, limited liability
company or beneficial owner who would not have been entitled to such Additional
Amounts had it been the Holder of such Note.
The Company shall provide the Trustee with the official
acknowledgment of the relevant taxing authority (or, if such acknowledgment is
not available, a certified copy thereof) evidencing the payment of the
withholding taxes, if any, by the Company. Copies of such documentation shall be
made available to the Holders of the Securities or the Paying Agent, as
applicable, upon request therefor.
All references in this Indenture to principal of, premium, if any,
and interest on the Securities shall include any Additional Amounts payable by
the Company in respect of such principal, such premium, if any, and such
interest.
SECTION 3.10. MANDATORY REDEMPTION.
Except as otherwise set forth in this Indenture, the Company shall
not be required to make mandatory redemption payments with respect to the
Securities.
SECTION 3.11. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an Asset Sale Offer, it shall follow the
procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Securities required
to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less
than the Offer Amount has been tendered, all Securities tendered in response to
the Asset Sale Offer. Payment for any Securities so purchased shall be made in
the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Securities pursuant to the Asset Sale Offer.
<PAGE> 51
51
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.11 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Securities
surrendered by Holders exceeds the Offer Amount, the Company shall select
the Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Securities in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Securities were purchased only in part
shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered (or transferred by book-entry
transfer).
On or before 10:00 a.m. on the Purchase Date, the Company shall,
to the extent lawful,
<PAGE> 52
52
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount or portions thereof tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Securities tendered, and shall
deliver to the Trustee an Officers' Certificate stating that such Securities or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.11. The Company, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Securities tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.11, any
purchase pursuant to this Section 3.11 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4. COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest and Special Interest, if any, on the Securities on
the dates and in the manner provided in the Securities. Principal, premium, if
any, and interest and Special Interest, if any, shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest and Special Interest, if any, then
due. The Company shall pay all Special Interest, if any, in the same manner on
the dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to 1% per annum in excess of the then applicable interest rate on the
Securities to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Special Interest (without regard to any applicable grace period) at
the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Securities may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the
<PAGE> 53
53
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the SEC,
so long as any Securities are outstanding, the Company will furnish to the
Trustee and the Holders of the Securities (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company was required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such reports, in
each case within the time periods specified in the SEC's rules and regulations.
In addition, whether or not required by the rules and regulations of the SEC,
the Company will file a copy of all such information and reports with the SEC
for public availability within the time periods specified in the SEC's rules and
regulations (unless the SEC will not accept such a filing). Furthermore, the
Company will agree that, for so long as any Securities remain outstanding (and
regardless of the immediately preceding sentence), it will furnish to the
Holders of the Securities and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act or pursuant to the requirements of any
securities exchange, if applicable.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company and each Guarantor shall deliver to the Trustee
(to the extent that such Guarantor is so required under the TIA), within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
<PAGE> 54
54
has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may
have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Securities is
prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect
thereto. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4 or
Article 5 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Securities.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
<PAGE> 55
55
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company or
any of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests (other than
dividends or distributions by the Company payable in Equity Interests (other
than Disqualified Stock) of the Company, or dividends or distributions by a
Restricted Subsidiary made only to the Company or a Restricted Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company (other than any such
Equity Interests owned by the Company or any Restricted Subsidiary of the
Company); (iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Securities, except, in each use, a payment of interest or
principal at Stated Maturity; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless
(a) at the time of and after giving effect to such Restricted
Payment, no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;
(b) in the case of clauses (i), (ii) and (iii) above, and, in the
case of any Restricted Investment that is not an Investment in a Permitted
Business, the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 4.09 hereof; and
(c) the aggregate amount (if not made in cash, the fair market
value as determined in good faith by the Board of Directors) of such Restricted
Payment and all other Restricted Payments made by the Company and its Restricted
Subsidiaries (excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (x) and (xiii) (but, in the case of clause (xiii), only to the extent that
such Restricted Payments are reflected as an expense on the income statements of
the Company) of the next succeeding paragraph), is less than the sum, without
duplication, of (i) the remainder of (x) 100% of cumulative Consolidated Cash
Flow (or, in case Consolidated Cash Flow shall be negative, less 100% of such
deficit) for the period (taken as one accounting period) beginning on the date
of this Indenture and ending on the last day of the last full fiscal quarter
immediately preceding the date of such Restricted Payment minus (y) the product
of 1.5 times the cumulative Consolidated Interest Expense of the Company from
the date of this Indenture through the last day of the last full fiscal quarter
immediately preceding the date of such Restricted Payment, plus (ii) 100% of the
aggregate net cash proceeds and the Fair Market Value of property or assets
received by the Company since the date of this
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Indenture as a contribution to its common equity capital or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock) or from
the issue or sale of Disqualified Stock or Indebtedness of the Company that have
been converted into such Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of the
Company), plus the amount of cash or the Fair Market Value of property or assets
received by the Company or any Restricted Subsidiary upon such conversion or
exchange, plus (iii) the aggregate amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x) dividends,
distributions, interest payments, return of capital, repayments of Investments
or other transfers of assets to the Company or any Restricted Subsidiary from
any Unrestricted Subsidiary, (y) proceeds realized by the Company or any
Restricted Subsidiary upon the sale of such Investment to a Person other than
the Company or any Subsidiary of the Company, or (z) the redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of
any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of
Restricted Investments made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary after the date of this Indenture, plus (iv) to the
extent that any Restricted Investment that was made after the date of this
Indenture is sold, the amount of cash or Fair Market Value of assets received
therefrom (net of any cost of disposition) not to exceed the aggregate amount of
such Restricted Investment.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the foregoing provisions;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of
any subordinated Indebtedness or Equity Interests of the Company in exchange
for, or out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of, other Equity Interests of the Company
(other than any Disqualified Stock) after the date of this Indenture; provided
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance,
redemption, retirement, repurchase or other acquisition of Indebtedness that is
subordinated to the Securities with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a
Restricted Subsidiary of the Company to the holders of its Equity Interests on a
pro rata basis; (v) the purchase of any subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount thereof following a Change
of Control pursuant to an obligation in the instruments governing such
subordinated Indebtedness to purchase or redeem such subordinated Indebtedness
as a result of such Change of Control; provided, however, that no such purchase
or redemption shall be permitted until the Company has completely discharged its
obligations described under Section 4.14 (including the purchase of all
Securities tendered for purchase by holders) arising as a result of such Change
of Control; (vi) 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 Company and its Restricted Subsidiaries; (vii)
the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company determined to be necessary or
advisable by the Board of Directors in good faith in connection with a merger or
acquisition of
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assets by the Company as a Restricted Subsidiary or of a Person that is or
immediately thereafter becomes a Restricted Subsidiary otherwise permitted
pursuant to this Indenture in which at least 80% of the consideration issued or
paid by the Company and its Restricted Subsidiaries is Equity Interests of the
Company; provided that the aggregate amount of such repurchases, redemptions or
other acquisitions or retirements for value in connection with any merger or
acquisition shall not exceed the lesser of (x) 7.5% of the Consolidated Tangible
Assets of the Company and its Restricted Subsidiaries prior to the transaction
and (y) 7.5% of the Equity Interests to be issued by the Company in the
transaction (provided that the amount of such purchases shall reduce the amount
available for Restricted Payments under clause (c) (ii) of the immediately
preceding paragraph); (viii) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any of its
Restricted Subsidiaries held by any director, officer, employee or consultant of
the Company or any Restricted Subsidiary; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $10.0 million in any twelve-month period (with unused amounts being
carried over to succeeding twelve-month periods, subject to a maximum of $15.0
million in any twelve-month period); provided further, that such amount in any
twelve-month period may be increased by an amount (to the extent not previously
applied) not to exceed (A) the cash proceeds received by the Company or any of
its Restricted Subsidiaries from the sale of Equity Interests (other than
Disqualified Stock) of the Company (to the extent contributed to the Company) to
directors, officers, employees or consultants of the Company and its Restricted
Subsidiaries that occurs after the Issue Date (provided that the amount of such
cash proceeds utilized for any such repurchase, retirement, other acquisition or
retirement for value will not increase the amount available for Restricted
Payments under clause (c)(ii) of the immediately preceding paragraph) plus (B)
the cash proceeds of key man life insurance policies received by the Company and
its Restricted Subsidiaries after the Issue Date (provided that the Company may
elect to apply all or any portion of the aggregate increase contemplated by
clauses (A) and (B) above in any single twelve-month period); (ix) repurchases
of Equity Interests deemed to occur upon exercise of stock options if such
Equity Interests represent a portion of the exercise price of such options; (x)
Investments acquired in exchange for Equity Interests (other than Disqualified
Stock), or made with the net cash proceeds received from an Equity Offering made
by the Company after June 30, 2000, (provided that the amount of any such Equity
Interests or net cash proceeds that are utilized for any such Investment shall
be excluded from clause (c)(ii) of the preceding paragraph) plus the net gain
realized in cash and not otherwise included in Consolidated Cash Flow from the
sale of Restricted Investments; (xi) the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Stock of the
Company or any of its Restricted Subsidiaries issued or incurred in accordance
with the Section 4.09 on the date on which such dividend or distribution was
scheduled to be paid in the original documentation governing such Disqualified
Stock, not including any contingent obligation to pay such dividend or
distribution prior to the date originally scheduled for the payment thereof;
(xii) the declaration and payment of dividends or distributions to holders of
any class or series of Designated Preferred Stock, not in excess of $50.0
million per year; and (xiii) other Restricted Payments in an aggregate amount
not to exceed $25.0 million.
The Board of Directors may not designate any Subsidiary of the
Company (other than a newly created Subsidiary in which no Investment has been
made (other than the amount
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required to capitalize such Subsidiary in connection with its organization))
as an Unrestricted Subsidiary (a "Designation") unless: (i) no Default or Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such Designation; (ii) the Company would, immediately after giving
effect to such Designation, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the first paragraph of Section 4.09; and
(iii) the Company would not be prohibited under this Indenture from making an
Investment at the time of such Designation (assuming the effectiveness of such
Designation for purposes of clauses (a) and (b) of this Section 4.07) in an
amount equal to the fair market value of the net Investment of the Company or
any other Restricted Subsidiary in such Subsidiary on such date.
In the event of any such Designation, all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary so
designated will be deemed to be an Investment made as of the time of such
Designation and will reduce the amount available for Restricted Payments under
the first paragraph or second paragraph of this Section 4.07, as applicable, or
Permitted Investments, as applicable. All such outstanding Investments will be
deemed to constitute Restricted Payments in an amount equal to the fair market
value of such Investments at the time of such Designation.
A Designation may be revoked (a "Revocation") by a resolution of
the Board of Directors delivered to the Trustee, provided that the Company will
not make any Revocation unless: (i) no Default or Event of Default shall have
occurred and be continuing at the time of or after giving effect to such
Revocation; and (ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred at such time for all purposes under
this Indenture.
The amount of a Restricted Payment (other than cash) shall be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company (or such
Restricted Subsidiary, as the case may be) pursuant to the Restricted Payment.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation in,
or measured by, its profits, or (b) pay any indebtedness owed to the Company or
any of its Restricted Subsidiaries, (ii) make loans or advances to the Company
or any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries. However, the
foregoing restrictions will not apply to encumbrances or restrictions existing
under or by reason of (a) Existing Indebtedness as in effect on the date of this
Indenture, (b) agreements as in effect as of the date of this Indenture, (c)
Indebtedness or any agreement pursuant to which such Indebtedness was issued,
incurred in accordance with clause (g), (h), (i), (k) or (n) of the second
paragraph of Section 4.09 hereof, provided that such (A) encumbrances or
restrictions are customary with respect to such types of Indebtedness (as
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determined in good faith by the Chief Financial Officer of the Company), (B) 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 Indebtedness or
agreement and (C) the Board of Directors determines that any such encumbrance or
restriction will not materially affect the Company's ability to pay principal,
premium, interest and Additional Amounts pursuant to the terms of the Securities
and this Indenture, (d) this Indenture, the Securities and the Exchange
Securities, (e) applicable law, (f) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred or Capital Stock was issued in connection with or
in contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or its Subsidiaries, or the property or assets of the Person or its
Subsidiaries, so acquired, provided, that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred, (g) in
the case of clause (iii) of the first paragraph of this Section 4.08, (A)
existing by virtue of any transfer of, agreement to transfer, option or right to
transfer with respect to, or Lien on, any property or assets of the Company or
any Restricted Subsidiary not otherwise prohibited by this Indenture, or (B)
arising or agreed in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, materially
detract from the value of property or assets of the Company or Restricted
Subsidiary to the Company or any Restricted Subsidiary, and that the Board of
Directors determines will not materially affect the Company's ability to pay
principal, premium, interest and Additional Amounts pursuant to the terms of the
Securities and this Indenture, (h) customary non-assignment provisions entered
into in the ordinary course of business in leases, licenses and other contracts
to the extent the provisions restrict the transfer, sublicensing or any license
or subletting of any lease or the assignment of rights under such contract, (i)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, (j) any agreement for the sale or other disposition
of a Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition, (k) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive, taken
as a whole, than those contained in the agreements governing the Indebtedness
being refinanced, (l) Liens securing Indebtedness otherwise permitted to be
incurred pursuant to the provisions of Section 4.12 hereof that limit the right
of the Company or any of its Restricted Subsidiaries to dispose of the assets
subject to such Lien, (m) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other similar
agreements entered into in the ordinary course of business and (n) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business, (o) restrictions created in
connection with any Receivables Facility that, in the good faith determination
of the Board of Directors are necessary or advisable to effect such Receivables
Facility; provided, however, that such restrictions apply only to such
Receivables Entity; or (p) any encumbrances or restrictions of the type referred
to in clauses (i), (ii) and (iii) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (a) through (o) above, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith
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judgment of the Board of Directors, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend or
other payment restrictions prior to such amendments, modifications, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any Disqualified Stock or Preferred
Stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock and its Restricted
Subsidiaries may incur Indebtedness or issue Disqualified Stock or Preferred
Stock if either:
(i) the Consolidated Leverage Ratio is less than 6.0 to 1.0 prior
to December 31, 2002, or 5.5 to 1.0 thereafter; or
(ii) the Consolidated Capital Ratio is less than 2.25 to 1.0.
Notwithstanding the foregoing, the provisions of the paragraph set
forth above will not apply to the incurrence of any of the following items of
Indebtedness (collectively, "Permitted Indebtedness"):
(a) The incurrence by the Company of Indebtedness represented by
the Securities and the Exchange Securities and any Guarantees thereof;
(b) The incurrence by the Company or any of its Restricted
Subsidiaries of Existing Indebtedness;
(c) The incurrence of Indebtedness by the Company to any
Restricted Subsidiary or Indebtedness of any Restricted Subsidiary to
the Company or any other Restricted Subsidiary or the issuance of shares
of Preferred Stock by a Restricted Subsidiary to the Company or any
other Restricted Subsidiary (but only for so long as such Indebtedness
or shares of Preferred Stock are held by the Company or such Restricted
Subsidiary);
(d) The incurrence by the Company or any of its Restricted
Subsidiaries of Capital Lease Obligations (other than leases of backhaul
services) incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property, plant
or equipment used in the business of the Company or such Restricted
Subsidiary, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (d), in an aggregate principal amount not to exceed $25.0 million
at any time outstanding;
(e) The incurrence by the Company or any of its Restricted
Subsidiaries of
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Indebtedness pursuant to acquisitions of capacity made in the ordinary
course of business;
(f) The incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest or foreign currency exchange rate risk with
respect to any floating rate Indebtedness that is permitted by the terms of
this Indenture to be outstanding;
(g) The incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt;
(h) The incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by this Indenture
to be incurred pursuant to the immediately preceding paragraph hereof or
clauses (a), (b), (d), (e), (g), (h), (i), (k), (m), (n) or (o) of this
paragraph;
(i) The incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness not otherwise permitted to be
incurred pursuant to this paragraph in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any Indebtedness incurred pursuant to this clause (i), not to exceed $100.0
million;
(j) The incurrence of Indebtedness by a Receivables Entity in a
Qualified Receivables Transaction, provided that the proceeds thereof are
applied in accordance with Section 4.10 hereof;
(k) The incurrence by the Company or any Restricted Subsidiary of
Purchase Money Indebtedness;
(l) Letters of Credit that are cash collateralized; Indebtedness
(A) in respect of performance, surety or appeal bonds or letters of credit
supporting Trade Payables, in each case provided in the ordinary course of
business, and (B) 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 Company or any of its Restricted Subsidiaries pursuant
to such agreements, in any case incurred in connection with the disposition
of any business, assets or Restricted Subsidiary of the Company (other than
guarantees of Indebtedness incurred for the purpose of financing such
acquisition by the Person acquiring all or any portion of such business,
assets or Restricted Subsidiary), in a principal amount not to exceed the
gross proceeds actually received by the Company or any Restricted
Subsidiary in connection with such disposition;
(m) Indebtedness of the Company that by its terms or by the terms
of any agreement or instrument pursuant to which such Indebtedness is
incurred (x) is expressly made subordinate in right of payment to the
Securities and (y) provides that no payment with respect thereto other than
interest may be made prior to the payment in full of all of the
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Company's obligations under the Securities except with the proceeds of a
capital contribution, the sale of Capital Stock (other than Disqualified
Stock) of the Company or other Indebtedness incurred pursuant to this
clause (m) or Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (m),
not in excess of $200.0 million at any time outstanding except to the
extent such Indebtedness in excess thereof also provides that no payment of
interest may be made prior to the payment in full of all of the Company's
obligations under the Securities except as provided above;
(n) The incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under one or more Credit Facilities or Letters
of Credit, in an aggregate principal amount at any one time outstanding not
to exceed the greater of (x) $200.0 million and (y) 85.0% of Eligible
Accounts Receivable not sold or pledged for Indebtedness incurred under
clause (j), including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (n);
(o) The guarantee by the Company or any Restricted Subsidiary of
Indebtedness of the Company or any Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Section
4.09; and
(p) Indebtedness arising from the honoring by a bank or other
financing institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within two business days of its incurrence.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, incur any Indebtedness (including Permitted Indebtedness) that
is contractually subordinated in right of payment to any other Indebtedness of
the Company or such Restricted Subsidiary unless such Indebtedness is also
contractually subordinated in right of payment to the Securities on
substantially identical terms; provided, however, that no Indebtedness of the
Company shall be deemed to be contractually subordinated in right of payment to
any other Indebtedness of the Company solely by virtue of being unsecured.
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded with
respect to any outstanding Indebtedness solely as a result of fluctuations in
the exchange rate of currencies.
For purposes of determining any particular amount of Indebtedness
under this Section 4.09, guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included. For purposes of
determining any particular amount of Indebtedness under this Section 4.09, if
any such Indebtedness denominated in a foreign currency is subject to a Currency
Agreement with respect to U.S. dollars covering all principal of, premium, if
any, and interest payable on such Indebtedness, the amount of such Indebtedness
expressed in U.S. dollars will be as provided in such Currency Agreement. For
purposes of determining compliance with this Section 4.09, (A)
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in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in the above clauses, the Company, in its
sole discretion, shall classify (and from time to time may reclassify) such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses and (B) the principal amount of Indebtedness
issued at a price that is less than the principal amount thereof shall be equal
to the amount of the liability in respect thereof determined in conformity with
GAAP.
SECTION 4.10. ASSET SALES
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale unless, (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net
Proceeds received by the Company (or such Restricted Subsidiary, as the case may
be) from such Asset Sale are applied within 360 days following the receipt of
such Net Proceeds (a) to repay, redeem or repurchase outstanding pari passu
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary;
provided that in the event that such Restricted Subsidiary is a Guarantor, the
Indebtedness to be redeemed or repurchased ranks at least pari passu to the
Guarantee given by such Restricted Subsidiary, (b) to reinvest, or enter into a
legally binding agreement to reinvest, such Net Proceeds (or any portion
thereof) in assets that are used or useful in a Permitted Business or in the
Capital Stock of a Person engaged in a Permitted Business that is or immediately
thereafter becomes a Restricted Subsidiary or (c) in any combination permitted
by clauses (a) and (b). Pending the final application of any such Net Proceeds,
the Company or such Restricted Subsidiary may invest such Net Proceeds in Cash
Equivalents. The balance of such Net Proceeds, after the application of such Net
Proceeds as described in the immediately preceding clauses (a) and (b), shall
constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds equals or exceeds
$15.0 million, the Company will be required to and, at the election of the
Company, at any earlier time, the Company, may make an offer to all Holders of
Securities and pari passu Indebtedness (an "Asset Sale Offer") to purchase the
maximum principal amount of Securities and pari passu Indebtedness that may be
purchased out of the Excess Proceeds, at a purchase price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon to the date of purchase, in accordance with the procedures set forth in
Article 3 of this Indenture and the agreements governing such pari passu
Indebtedness. To the extent that any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose
not otherwise prohibited by this Indenture. If the aggregate principal amount of
Securities and pari passu Indebtedness tendered into such Asset Sale Offer by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Securities and pari passu Indebtedness to be purchased on a pro rata basis.
Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero for purposes of the first sentence of this paragraph.
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The amount of (i) any liabilities (as shown on the Company's (or
such Restricted Subsidiary's, as the case may be) most recent balance sheet) of
the Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Securities or any
guarantee thereof) that are assumed by the transferee of any such assets
pursuant to an agreement that releases the Company or any Restricted Subsidiary
from all liability in respect thereof, (ii) Indebtedness of any Restricted
Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset
Sale, to the extent that the Company and each other Restricted Subsidiary are
released from any guarantee of payment of the principal amount of such
Indebtedness in connection with such Asset Sale (iii) any securities, Securities
or other obligations received by the Company (or such Restricted Subsidiary, as
the case may be) from such transferee that are converted by the Company (or such
Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to
the extent of the cash and/or Cash Equivalents received) within 180 days
following the receipt thereof, (iv) the Fair Market Value of any assets used or
useful in a Permitted Business received in such Asset Sale and (v) any
Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received
pursuant to this clause (v) that is at that time outstanding, not to exceed 10%
of Consolidated Tangible Assets at the time of receipt of such Designated
Noncash Consideration, will be deemed to be cash and/or Cash Equivalents for
purposes of this provision.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act, and any other securities laws and regulations to the extent
such laws and regulations are applicable in connection with the purchase of the
Securities as a result of an Asset Sale Offer. To the extent that the provisions
of any securities laws or regulations conflict with the Asset Sale provisions of
this Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
Asset Sale provisions of this Indenture by virtue thereof.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person and (ii) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25.0 million, the Company
delivers to the Trustee a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction is approved by a majority
of the Disinterested Directors and (iii) with respect to any Affiliate
Transaction or series of related Affiliate Transactions (other than with
Microsoft Corporation, Softbank Corp. or any of their respective Affiliates)
involving aggregate consideration in excess of $50.0 million, the Company
<PAGE> 65
65
delivers to the Trustee an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view from an accounting,
appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (i) (a) the entering into, maintaining or
performance of any employment contract, collective bargaining agreement, Plan,
related trust agreement or any other similar arrangement for or with any
employee, officer, consultant or director heretofore or hereafter entered into
in the ordinary course of business, (b) the payment of compensation, performance
of indemnification or contribution obligations, or an issuance, grant or award
of stock, options, or other equity-related interests or other securities to
employees, officers, consultant or directors in the ordinary course of business,
(c) any transaction in the ordinary course of business not involving more than
$250,000 in any one case, or (d) Management Advances and payments in respect
thereof, (ii) transactions between or among the Company and/or its Restricted
Subsidiaries or any Receivables Entity, (iii) payment of reasonable directors
fees, (iv) any sale or other issuance of Equity Interests (other than
Disqualified Stock) of the Company, (v) Affiliate Transactions in effect or
approved by the Board of Directors on the date of this Indenture, including any
amendments thereto (provided that the terms of such amendments are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than the terms of such agreement prior to such amendment), (vi) any transaction
between the Company or any Restricted Subsidiary, on the one hand, and any
Affiliate of the Company engaged primarily in a Permitted Business on the other
hand, (A) in the ordinary course of business and consistent with commercially
reasonable practices or (B) approved by a majority of the Disinterested
Directors, (vii) any payment pursuant to any tax sharing agreement between the
Company and any other Person with which the Company files a consolidated tax
return or with which the Company is part of a consolidated group for tax
purposes, provided that such payment is not greater than that which the Company
would be required to pay as a stand-alone taxpayer, (viii) the existence of, or
the performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party as of the Issue Date and any similar agreements which it may enter
into thereafter that are otherwise permitted by this Indenture; provided,
however, that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Issue
Date shall only be permitted by this clause (viii) to the extent that the terms
of any such amendment or new agreement are not otherwise materially adverse to
the interests of the Holders, and (ix) Restricted Payments that are permitted by
Section 4.07 hereof.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired, unless all payments
due under this Indenture and the Securities are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no
longer secured by a Lien.
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SECTION 4.13. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Securities.
SECTION 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of
Securities will have the right to require the Company to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control Offer")
at a purchase price in cash (the "Change of Control Payment") equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest and
Special Interest thereon to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that the Company shall not
be obligated to repurchase Securities pursuant to this covenant in the event
that it has exercised its rights to redeem all of the Securities as described in
Sections 3.07 and 3.08 hereof. Within 30 days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to purchase
Securities on the date specified in such notice, which date shall be no earlier
than 30 and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), in accordance with the procedures required by
this Indenture and described in such notice. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations to the extent such laws and regulations are applicable in
connection with the purchase of Securities as a result of a Change of Control.
To the extent that the provisions of any securities laws or regulations conflict
with any of the provisions of this Section 4.14, the Company will comply with
the applicable securities laws and regulations and will be deemed not to have
breached its obligations under this covenant by virtue thereof.
(b) On the Change of Control Payment Date, the Company will, to
the extent lawful, (1) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Securities or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of Securities or portions
thereof being purchased by the Company. The Paying Agent will promptly mail or
deliver to each Holder of Securities so tendered the Change of Control Payment
for such Securities, and the Trustee will
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promptly authenticate and mail or deliver (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of Securities surrendered, if any; provided that each such new Note will
be in a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.14, the
Company shall not be required to make a Change of Control Offer upon the
occurrence of a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14, and purchases all Securities
validly tendered and not withdrawn under such Change of Control Offer.
Section 4.15. Business Activities.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business other than a Permitted Business, and
will not become an instrument company subject to regulation under the Investment
Company Act of 1940, as amended.
Section 4.16.
[Reserved]
Section 4.17.
[Reserved]
Section 4.18. Issuances and Sales of Equity Interests in Wholly Owned Restricted
Subsidiaries.
The Company (i) shall not, and shall not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in East Asia Crossing Ltd. and its Wholly Owned Restricted
Subsidiaries or any Wholly Owned Restricted Subsidiary of the Company that
directly or indirectly owns such Subsidiaries to any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) and (ii) shall
not permit East Asia Crossing Ltd. and its Wholly Owned Restricted Subsidiaries
or any Wholly Owned Restricted Subsidiary of the Company that directly or
indirectly owns such Subsidiaries to issue any of its Equity Interests (other
than, if necessary, shares of its Capital Stock constituting directors'
qualifying shares) to any Person other than to the Company or a Wholly Owned
Restricted Subsidiary of the Company, except in the case (a) such transfer,
conveyance, sale, lease or other disposition, together with all prior transfers,
conveyances, sales, leases or other dispositions, does not exceed 20% of the
Equity Interest in East Asia Crossing Ltd. and its Wholly Owned Restricted
Subsidiaries or such Wholly Owned Restricted Subsidiary of the Company and (b)
the Net Proceeds from such transfer, conveyance, sale, lease or other
disposition are applied either (A) to repay outstanding Indebtedness permanently
under the Credit Facilities of the Company or its Restricted Subsidiaries or (B)
to make an offer to all Holders of Securities to purchase all or any part of
such Holders' Securities at a purchase price in cash in an amount equal to ___%
of the principal amount thereof plus accrued and unpaid
<PAGE> 68
68
interest thereon to the date of purchase, in accordance with Section 9(b) on the
back of the Note.
Section 4.19. Payments For Consent.
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or is paid to all Holders of the Securities that consent, waive or agree to
amend such terms or provisions of this Indenture or the Securities in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
Section 4.20. Money for Payments to Be Held In Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal, premium, interest or Special
Interest, if any, with respect to the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium, interest or Special Interest, if any, 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 Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal, premium,
interest or Special Interest, if any, with respect to the Securities, deposit
with a Paying Agent a sum in same day funds (or New York Clearing House funds if
such deposit is made prior to the date on which such deposit is required to be
made) sufficient to pay the principal, premium, interest or Special Interest, if
any, so becoming due (or at the option of the Company, payment of interest may
be mailed by check to the Holders of the Securities at their respective
addresses set forth in the register of Holders of Securities; provided that all
payments with respect to Securities represented by one or more permanent global
Securities will be paid by wire transfer of immediately available funds to the
account of the Depository Trust Company or any successor thereto) such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium, interest or Special Interest, if any, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of such action or any
failure so to act.
The Company 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:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal,
premium, interest or Special
<PAGE> 69
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Interest, if any;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and obligations
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company 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 Company 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 Company, in trust for the payment of the principal, premium, interest or
Special Interest, if any, with respect to a Note and remaining unclaimed for two
years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company at the request of the Company or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the Company cause notice to be promptly sent to each Holder that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 4.21. Future Guarantees.
If any Restricted Subsidiary guarantees any Debt Securities issued by
the Company, then (i) the Company shall promptly notify the Trustee of such
guarantee, (ii) the Trustee shall, in turn, notify each Holder and (iii) the
Company shall cause this Indenture to be amended to make such Restricted
Subsidiary a Guarantor hereunder. Prior to the execution of such amendment, each
such Restricted Subsidiary required to become a Guarantor pursuant to the
provisions of this Section 4.21 shall be deemed a Guarantor hereunder for
purposes of determining the rights and obligations hereunder.
ARTICLE 5. SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly, consolidate or merge
with or into (whether
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70
or not the Company is the surviving corporation), or sell, assign, transfer,
convey or otherwise dispose of all or substantially all of its properties and
assets, in one or more related transactions, to another Person unless: (i) the
Company is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States, any state
thereof or the District of Columbia, or Bermuda; (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Registration Rights Agreement, the Securities and this Indenture pursuant to a
supplemental indenture in a form and substance reasonably satisfactory to the
Trustee; (iii) immediately after such transaction no Default or Event of Default
exists; and (iv) except in the case of a merger of the Company with or into a
Restricted Subsidiary of the Company, the Company or the Person formed by or
surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made will, immediately after such transaction and after giving pro
forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 4.09 hereof or the Consolidated Leverage Ratio would be no greater
than such ratio immediately prior to such transaction if the ratio prior to such
transaction is positive or greater than or equal to such ratio if the ratio
prior to such transaction is negative. The Company shall not, directly or
indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person. The provisions of this
covenant will not be applicable to a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and its Restricted
Subsidiaries.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Securities except in the case of a sale of all
of the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
<PAGE> 71
71
"Events of Default" wherever used herein with respect to any series of
Securities means any one of the following events:
(i) default for 30 days in the payment when due of interest on the
Securities of such series;
(ii) default in the payment when due of the principal of, or premium,
if any, on, the Securities of such series;
(iii) default in the payment of principal and interest on any
Securities required to be purchased pursuant to Sections 4.10 and 4.14 or
the failure by the Company or any of its Restricted Subsidiaries to comply
with Section 5.01;
(iv) failure by the Company or any of its Restricted Subsidiaries for
60 days after written notice from the Trustee or holders of 25% or more of
the aggregate principal amount of the Securities of a series to comply with
any of its other agreements in this Indenture with respect to the Securities
of such series or the Securities of such series;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries
(or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default shall constitute
failure to pay the principal of such Indebtedness at Stated Maturity (after
giving effect to any applicable grace periods and any extensions thereof) or
results in the acceleration of such Indebtedness prior to its Stated
Maturity and, in each case, the principal amount of any such other
Indebtedness, together with the principal amount of any other such
Indebtedness which has not been paid or the maturity of which has been so
accelerated, aggregates $25.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to
pay final judgments not subject to appeal aggregating in excess of $25.0
million (net of applicable insurance coverage which is acknowledged in
writing by the insurer), which judgments are not paid, discharged or stayed
for a period of 60 days following the entry of the final judgment or order
that causes the aggregate amount for all such final judgments or orders
outstanding and not paid, discharged or stayed to exceed $25.0 million;
(vii) except as provided by this Indenture, any Guarantee of the
Securities by a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Guarantor
that is a Significant Subsidiary or any group of Guarantors that, taken
together, would constitute a Significant Subsidiary , or any Person acting
on behalf of any Guarantor or Guarantors, shall deny or disaffirm its
obligations under its Guarantee of the Securities of such series;
<PAGE> 72
72
(viii) the Company or any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a custodian of it or for all
or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due; and
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary,
(b) appoints a custodian of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary; or
(c) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration.
If any Event of Default with respect to outstanding Securities of any
series occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Securities of such series, by written
notice to the Company, may declare all the Securities of such series to be due
and payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (viii) or (ix) of Section 6.01 hereof with respect to
outstanding Securities of any series occurs with respect to the Company, any
Restricted Subsidiary that constitutes a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Securities of such series shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Securities of such series by
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written notice to the Trustee may on behalf of all of the Holders of Securities
of such series rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
If an Event of Default with respect to outstanding Notes Due 2010
occurs by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding payment of the premium
that the Company would have had to pay if the Company then had elected to redeem
the Notes Due 2010 pursuant to Section 3.07 hereof, then, upon acceleration of
the Securities, an equivalent premium shall also become and be immediately due
and payable to Holders of Notes Due 2010, to the extent permitted by law,
anything in this Indenture or in the Securities to the contrary notwithstanding.
If an Event of Default occurs prior to ____________, 2005 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on redemption of the Notes Due
2010 prior to such date, then, upon acceleration of the Securities, an
additional premium shall also become and be immediately due and payable in an
amount, for each of the years beginning on [_______] of the years set forth
below, as set forth below (expressed as a percentage of the aggregate principal
amount to the date of payment that would otherwise be due but for the provisions
of this sentence):
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2000__________%
2001__________%
2002__________%
2003__________%
2004__________%
</TABLE>
Section 6.03. Other Remedies.
If an Event of Default with respect to outstanding Securities of any
series occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal, premium, if any, and interest and Special
Interest, if any, on the Securities of such series or to enforce the performance
of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of such series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of a Note of such
series in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Securities of any series by notice to the Trustee may on
behalf of the Holders of all of the
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Securities of such series waive an existing Default or Event of Default with
respect to such series and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of, premium and
Special Interest, if any, or interest on, the Securities of such series
(including in connection with an offer to purchase) (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount thereof and waiver of the payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist with respect to such series, and any Event of Default with respect to
such series 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 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Securities or that
may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note of any series may pursue a remedy with respect to
this Indenture to the extent it relates to the Securities of such series, or the
Securities of such series only if:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities of such series make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Securities offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities of such series do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Securities to Receive Payment.
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75
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing with respect to the Securities of any series, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of, premium
and Special Interest, if any, and interest remaining unpaid on the Securities of
such series and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Securities allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to participate as a member, voting
or otherwise, of any official committee of creditors appointed in such matter
and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money with respect to a series of
Securities pursuant to this Article 6, it shall pay out the money in the
following order:
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First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Securities of such series for amounts due and
unpaid on the Securities of such series for principal, premium and Special
Interest, if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities of such series
for principal, premium and Special Interest, if any, and interest, respectively;
and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities of any series.
ARTICLE 7. TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default with respect to any series of Securities has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in its exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon
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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 calculations or other facts stated therein
or otherwise verify the contents thereof).
(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:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or expense
including reasonable attorneys' fees that might be incurred by it in compliance
with such request or direction.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document. The
Trustee shall receive and retain financial reports and statements of the
Company as provided herein, but it shall have no duty to review or analyze
such reports or statements to determine compliance with covenants or other
obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection
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from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
(a) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this
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Indenture.
(b) If a Default or Event of Default with respect to a series of
Securities occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to Holders of such series of Securities a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of such series of Securities.
Section 7.06. Reports by Trustee to Holders of the Securities.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Securities remain outstanding,
the Trustee shall mail to the Holders of the Securities a brief report dated as
of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable
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fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld or
delayed.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created with respect to one or more series of Securities by so
notifying the Company. The Holders of a majority in principal amount of the then
outstanding Securities of any series may remove the Trustee with respect to such
series by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee with respect to one or more series of Securities if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee for such series of Securities. Within
one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Securities of such series may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Securities of at least 10% in principal amount of the then
outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee for such series of
Securities.
If the Trustee, after written request by any Holder of a Note of any
series who has been a Holder of a Note of such series for at least six months,
fails to comply with Section 7.10 hereof, such Holder of a Note may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for such series of Securities.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one but not all series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which shall:
(a) contain such provisions as shall be necessary of desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of the series to which the appointment of such successor Trustee relates;
(b) contain such provisions as shall be necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of the series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee; and
(c) add to or change any of the provisions of this Indenture as shall
be necessary or desirable to provide for or facilitate the administration of the
trusts hereunder by two Trustees; provided, however, that nothing contained
herein or in such supplemental Indenture shall constitute such Trustee to be
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust hereunder separate and apart from any trust hereunder administered by the
other such Trustee.
Upon the execution and delivery of such supplemental Indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein 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 with respect to the Securities of that series to
which the appointment of such successor Trustee relates. The successor Trustee
shall mail a notice of its succession to Holders of the Securities of such
series. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
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Section 7.09. Successor Trustee by Merger, etc.
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to such series of Securities.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder with respect to each
series of Securities that is a corporation organized and doing business under
the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee with respect to each series
of Securities who satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee is subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof applied to all outstanding Securities of any
series upon compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Securities of
any series on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities of such series, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to
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in (a) and (b) below, and to have satisfied all of its obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities of
such series to receive payments in respect of the principal of, premium, if any,
and interest on such Securities when such payments are due from the trust
referred to below; (b) the Company's obligations with respect to the Securities
of such series concerning issuing temporary Securities, registration of
Securities, mutilated, destroyed, lost or stolen Securities and the maintenance
of an office or agency for payment and money for security payments held in
trust; (c) the rights, powers, trusts, duties and immunities of the Trustee, and
the Company's obligations in connection therewith; and (d) the Legal Defeasance
provisions of this Indenture. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their respective obligations under the covenants contained in
Article 5 and in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15,
4.16, 4.17, 4.18 and 4.19 hereof with respect to the outstanding Securities of
any series on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Securities of such
series shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(iii) through 6.01(vii) hereof and 6.01(x) hereof
shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Securities of any series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(a) the Company must irrevocably deposit, or cause to be deposited,
with the Trustee, in trust, for the benefit of the Holders of the Securities of
such series, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest due on the outstanding Securities of
such series on the Stated Maturity thereof or on the applicable redemption date,
as the case may be, and the Company must specify whether the Securities of such
series are being defeased to maturity or to a particular redemption date;
(b) in the case of Legal Defeasance, the Company must deliver to the
Trustee an Opinion of Counsel (which may be subject to customary assumptions and
exclusions) in the United States reasonably acceptable to the Trustee confirming
that the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or 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 of Counsel shall confirm that, the Holders
of the outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance, and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company must deliver to the
Trustee an Opinion of Counsel in the United States reasonably acceptable to the
of the outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance,
and such Holders will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default with respect to such series shall
have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied
to such deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company must deliver to the Trustee an Opinion of Counsel
(which may be subject to customary assumptions and exclusions) in the United
States reasonably acceptable to the Trustee to the effect that after the 91st
day following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights and remedies generally;
(g) the Company must deliver to the Trustee an Officers' Certificate
stating that the
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deposit was not made by the Company with the intent of preferring the Holders of
the Securities of such series over other creditors of the Company, or with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others;
(h) the Company must deliver to the Trustee an Opinion of Counsel in
Bermuda reasonably acceptable to the Trustee to the effect that the Holders of
the outstanding Securities will not be adversely affected under Bermuda law; and
(i) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel in the United States reasonably acceptable to the
Trustee, each stating that all conditions precedent provided for or relating to
Legal Defeasance or Covenant Defeasance, as applicable, have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as 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, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, interest
or Special Interest, if any, on any Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as a secured creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
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If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
SECTION 8.08. SURVIVAL.
The Trustee's rights under this Article 8 shall survive termination of
this Indenture.
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SECURITIES.
Notwithstanding Section 9.02 hereof, the Company, the Guarantors and
the Trustee may amend or supplement this Indenture, the Guarantees or the
Securities without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in place
of certificated Securities or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Company's or any Guarantor's
obligations to the Holders of the Securities by a successor to the Company or a
Guarantor pursuant to Article 5 or Article 10 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect the
legal rights hereunder of any Holder of a Note, in the good faith judgment of
the Board of Directors;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to allow any Guarantor to execute a supplemental indenture and/or a
Guarantee with respect to the Securities;
(g) to add to, change or eliminate any of the provisions of this
Indenture in respect of
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one or more series of Securities, provided that any such addition, change or
elimination (A) shall neither (i) apply to any Note of any series created prior
to the execution of such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of any such Note with
respect to such provision or (B) shall become effective only when there is no
such Note outstanding;
(h) to establish the form or terms of Securities of any series as
permitted by Article 2;
(i) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SECURITIES.
Except as provided below in this Section 9.02, the Company, a Guarantor
(with respect to a Guarantee or this Indenture to which it is a party) and the
Trustee may amend or supplement this Indenture (including Section 3.11, 4.10 and
4.15 hereof), the Securities and the Guarantees with the consent of the Holders
of at least a majority in principal amount of the then outstanding Securities of
each series affected thereby voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default with respect to any series of Securities (other than
a Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Securities, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Securities or the Guarantees may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Securities
of each series affected thereby voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Securities).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Securities of each series affected
thereby as aforesaid, and upon receipt by the Trustee of the documents described
in Section 7.02 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental indenture unless such amended or supplemental
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indenture directly affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
indenture.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of Securities affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the then outstanding
Securities of each series affected thereby voting as a single class may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Securities. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Securities held by a non-consenting Holder):
(a) reduce the principal amount of Securities of each series whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter or waive any of the provisions with respect to the redemption of the
Securities of any series, other than provisions relating to Sections 3.11 or
4.15 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal of
or premium or Special Interest, if any, or interest on the Securities of any
series (except a rescission of acceleration of the Securities by the Holders of
at least a majority in aggregate principal amount of the then outstanding
Securities of each series and a waiver of the payment default that resulted from
such acceleration;
(e) make any Note payable in money other than that stated in the
Securities;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of or premium, interest or Special Interest, if any, on
the Securities;
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(g) waive a redemption payment with respect to any Note, other than a
payment required by Section 3.11 or 4.15 hereof;
(h) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities shall
be set forth in a amended or supplemental indenture that complies with the TIA
as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Securities may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Securities of the same series that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment is the legal,
valid and binding obligation of the Company and any Guarantors, enforceable
against them in accordance with their terms, subject to customary exceptions,
and complies with the provisions hereof (including Section 9.03).
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SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.08. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article 9 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
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trust and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Securities of such series.
ARTICLE 10. GUARANTEES
SECTION 10.01. GUARANTEE.
Subject to this Article 10, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Company hereunder or thereunder, that: (a)
the principal of and interest on the Securities will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Securities, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Securities or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Guarantee shall not be discharged except by complete
performance of the obligations
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contained in the Securities and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under its Guarantee and this Article 10 shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 10, result
in the obligations of such Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance.
SECTION 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form
included in Exhibit D shall be endorsed by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by an Officer thereof.
Each Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such
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Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which a Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
In the event that any Restricted Subsidiary guarantees any Debt
Securities issued by the Company subsequent to the date of this Indenture, if
required by Section 4.22 hereof, the Company shall cause such Restricted
Subsidiary to execute supplemental indentures to this Indenture and Guarantees
in accordance with Section 4.22 hereof, and this Article 10, to the extent
applicable.
SECTION 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
No Guarantor may consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person whether or not affiliated
with such Guarantor unless:
(a) subject to Section 10.05 hereof, the Person formed by or surviving
any such consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Securities, this Indenture, the Registration Rights Agreement
and the Guarantee on the terms set forth herein or therein; and
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the Securities and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
Notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a
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Guarantor as an entirety or substantially as an entirety to the Company, another
Guarantor or a Restricted Subsidiary.
SECTION 10.05. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, then such Guarantor
(in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the Person acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of such Guarantor) will be released
and relieved of any obligations under its Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture, including without limitation Section
4.10 hereof. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the applicable provisions
of this Indenture, including without limitation Section 4.10 hereof, the Trustee
shall execute any documents reasonably required in order to evidence the release
of any Guarantor from its obligations under its Guarantee.
Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Securities and for the other obligations of any Guarantor under this Indenture
as provided in this Article 10.
ARTICLE 11. SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall be discharged and will cease to be of further
effect as to all Securities of any series issued hereunder, when either
(a) all such Securities theretofore authenticated and delivered (except
lost, stolen or destroyed Securities which have been replaced or paid and
Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(b)
(i) all Securities of such series not theretofore delivered to
such Trustee for cancellation have become due and payable by
reason of the making of a notice of redemption or otherwise or
will become due and payable within one year and the Company or
a Guarantor, has irrevocably deposited or caused to be
deposited with such Trustee as trust funds in trust an amount
of money sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation for principal, premium, accrued
interest and Special Interest, if any, to the date of maturity
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or redemption;
(ii) no Default or Event of Default with respect to this Indenture,
so far as it relates to the Securities of such series, or the
Securities of such series shall have occurred and be
continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any
other instrument to which the Company or a Guarantor, is a
party or by which the Company or a Guarantor is bound;
(iii) the Company or a Guarantor has paid or caused to be paid all
sums payable by it under this Indenture in respect of the
Securities such series; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money
toward the payment of the Securities of such series at
maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge with respect to the Securities of such series have
been satisfied.
SECTION 11.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 4.19 hereof,
all money deposited with the Trustee pursuant to Section 11.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to Persons entitled thereto, of the principal (and premium, if any),
interest and Special Interest, if any, for whose payment such money has been
deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though such deposit had occurred pursuant to
Section 11.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 12. MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by
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TIA Section 318(c), the imposed duties shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
Asia Global Crossing Ltd.
Wessex House
45 Reid Street
Hamilton HM 12 Bermuda
Telecopier No.: (441) 296-8606
Attention: Secretary of the Company
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Telecopier No.: (212) 455-2502
Attention: Alan Klein, Esq.
If to the Trustee:
United States Trust Company of New York
114 West 47th Street - 25th Floor
New York, New York 10036
Telecopier No.:(212) 852-1626
Attention: Cynthia Chaney
With a copy to:
[Winston & Strawn
200 Park Avenue
New York, NY 10166
Telecopier No.:(212) 294-4700
Attention: Jeffrey H. Elkin, Esq.]
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to
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have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it except that any notice or communication to the Trustee shall be
deemed to have been duly given to the Trustee when received at the Corporate
Trust Office of the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF
SECURITIES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, except with respect to the initial
authentication of Securities on the date of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
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(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has or
they have made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS.
No past, present or future director, officer, employee, incorporator or
shareholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or such Guarantor under the Securities, the
Subsidiary Guarantees, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Securities.
SECTION 12.08. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.09. CURRENCY INDEMNITY.
U.S. dollars are the sole currency of account and payment for all sums
payable by the Company and the Guarantors under or in connection with the
Securities, including damages. Any account received or recovered in a currency
other than dollars (whether as a result of, or the enforcement of, a judgment or
order of a court of any jurisdiction, in the liquidation, dissolution or other
winding-up of the affairs of the Company or the Guarantors or otherwise) by any
Holder of a Note in respect of any sum expressed to be due to it from the
Company or the Guarantors shall only constitute a discharge to the Company and
the Guarantors to the extent of the dollar amount which the recipient is able to
purchase with the amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable
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98
to make that purchase on that date, on the first date on which it is practicable
to do so). If that dollar amount is less than the dollar amount expressed to be
due to the recipient under any Note, the Company and the Guarantors shall
indemnify it against any loss sustained by it as a result. In any event, the
Company and the Guarantors shall indemnify the recipient against the cost of
making any such purchase. For the purposes of this paragraph, it will be
sufficient for the Holder of a Note to certify in a satisfactory manner
(indicating the sources of information used) that it would have suffered a loss
had an actual purchase of dollars been made with the amount so received in that
other currency on the date of receipt or recovery (or, if a purchase of dollars
on such date had not been practicable, on the first date on which it would have
been practicable, it being required that the need for a change of date be
certified in the manner mentioned above). These indemnities constitute a
separate and independent obligation from the Company's and the Guarantors' other
obligations, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by any Holder of a Note and
shall constitute in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any Note.
SECTION 12.10. CONSENT TO JURISDICTION AND SERVICE.
To the fullest extent permitted by applicable law, the Company and each
of the Guarantors hereby irrevocably submit to the jurisdiction of any Federal
or State court located in the Borough of Manhattan in The City of New York, New
York in any suit, action or proceeding based on or arising out of or relating to
this Agreement or any Securities or Exchange Securities, and irrevocably agree
that all claims in respect of such suit or proceeding may be determined in any
such court. The Company and each of the Guarantors irrevocably waive, to the
fullest extent permitted by law, any objection which they may have to the laying
of the venue of any such suit, action or proceeding brought in such a court and
any claim that any suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Company and each of the Guarantors agree
that final judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding upon the Company and each such Guarantor
and may be enforced in the courts of Bermuda (or any other courts to the
jurisdiction of which the Company or such Guarantor is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company or
such Guarantor in the manner specified herein or as otherwise permitted by law.
The Company and each of the Guarantors hereby irrevocably designate and appoint
CT Corporation System, 1633 Broadway - 23rd Floor, New York, New York (the
"Process Agent"), as the authorized agent of the Company and each such Guarantor
upon whom process may be served in any such suit or proceeding, it being
understood that the designation and appointment of the Process Agent as such
authorized agent shall become effective immediately without any further action
on the part of the Company or any Guarantor. The Company and each of the
Guarantors hereby represent to each Initial Purchaser that they have notified
the Process Agent of such designation and appointment and that the Process Agent
has accepted the same in writing. The Company and each of the Guarantors hereby
irrevocably authorize and direct the Process Agent to accept such service. The
Company and each of the Guarantors further agree that service of process upon
the Process Agent and written notice of said service to the Company mailed by
prepaid registered first class mail or delivered to the Process Agent at its
principal office, shall be deemed in every respect effective service of process
upon the Company and each Guarantor in
<PAGE> 99
99
any such suit or proceeding. Nothing herein shall affect the right of any
Initial Purchaser or any person controlling any Initial Purchaser to serve
process in any other matter permitted by law. The Company and each of the
Guarantors further agree to take any and all action, including the execution and
filing of any and all such documents and instruments as may be necessary to
continue such designation and appointment of the Process Agent in full force and
effect so long as the Company or any Guarantor has any outstanding obligations
under this Agreement, the Securities, the Exchange Securities or this Indenture.
To the extent that the Company or any Guarantor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of note, attachment prior to judgment, attachment in aid of
execution, executor or otherwise) with respect to itself or its property, the
Company and each such Guarantor hereby irrevocably waive such immunity in
respect of their respective obligations under this Agreement, to the extent
permitted by law.
SECTION 12.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.13. SEVERABILITY.
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 12.14. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Indenture signature page follows]
<PAGE> 100
100
[Indenture signature page]
Dated as of ___________, 2000
ASIA GLOBAL CROSSING LTD.
BY:
NAME:
TITLE:
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE
BY:
NAME:
TITLE:
<PAGE> 101
EXHIBIT A-1
(Face of Note)
[INSERT THE GLOBAL SECURITY LEGENDS, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE INDENTURE]
[INSERT ORIGINAL ISSUE DISCOUNT LEGEND]
CUSIP
__% [SERIES A] [SERIES B] SECURITIES DUE ____
No. $
ASIA GLOBAL CROSSING LTD.
promises to pay to Cede & Co.
or registered assigns, the principal sum of
Dollars on _______, ____.
Interest Payment Dates: _________ and ________
Record Dates: ___________ and __________.
ASIA GLOBAL CROSSING LTD.
By:
Name:
Title:
By:
Name:
Title:
This is one of the
Securities referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: Dated: _________, ____
Name:
Title:
<PAGE> 102
(Back of Note)
__% [Series A] [Series B] Securities due ____
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated. For the purposes
of this Note, the term "Securities" shall refer only to the Company's __%
Securities due ____.
1. INTEREST.
Asia Global Crossing Ltd., a Bermuda company (the "Company"), promises
to pay interest on the principal amount of this Note at __% per annum from
_______, ____ until maturity [and shall pay the Special Interest payable
pursuant to Section __ of the Registration Rights Agreement referred to below].
The Company shall pay interest and Special Interest semi-annually on _______ and
_______ of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be _________, ____. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is
1.0% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Special Interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) and Special Interest to the Persons who are registered Holders of
Securities at the close of business on the _________ or ________ next preceding
the Interest Payment Date, even if such Securities are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Securities
shall be payable as to principal, premium and Special Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest may be made by check mailed to
the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, premium and Special Interest
on, all Global Securities and all other Securities the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent.
Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR.
<PAGE> 103
Initially, United States Trust Company of New York, the Trustee under
the Indenture, shall act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Restricted Subsidiaries may act in any such capacity.
4. INDENTURE.
The Company issued the Securities under an Indenture dated as of
October __, 2000 ("Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) below and in Section 6
hereof, the Securities shall not be redeemable at the Company's option at any
time.
(b) At any time prior to their maturity, the Securities may be redeemed
at the option of the Company, in whole but not in part, upon the occurrence of a
Change of Control, upon not less than 30 nor more than 60 days' prior notice
(but in no event may any such redemption occur more than 90 days after the
occurrence of such Change of Control) mailed by first-class mail to each
Holder's registered address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued and
unpaid interest, if any, to, the date of redemption.
(c) Any redemption pursuant to this Section 5 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 of the Indenture.
6. OPTIONAL TAX REDEMPTION.
The Securities shall be subject to redemption at the option of the
Company or a successor corporation at any time, in whole but not in part, upon
not less than 30 nor more than 60 days' notice, at a redemption price equal to
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date if, as a result of any change in or amendment to the laws or any
regulations or ruling promulgated thereunder of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having the power to
tax, (y) any jurisdiction, other than the United States, from or through which
payment on the Securities is made by the Company or a successor corporation, or
its paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax, or any change in the
official application or interpretation of such laws,
<PAGE> 104
regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such jurisdiction (or such political subdivision or
taxing authority) is a party (a "Change in Tax Law"), which becomes effective on
or after ____________, ____, the Company or a successor corporation is or would
be required on the next succeeding interest payment date to pay Additional
Amounts with respect to the Securities (as described under Section 7 hereof),
and the payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Company or a successor corporation.
In addition, the Securities shall be subject to redemption at the
option of the Company at any time, in whole but not in part, upon not less than
30 nor more than 60 days' notice, at a redemption price equal to the principal
amount thereof, plus accrued and unpaid interest thereon to the redemption date,
if the Person formed by a consolidation or amalgamation of the Company or into
which the Company is merged or to which the Company conveys, transfers or leases
its properties and assets substantially as an entirety is required, as a
consequence of such consolidation, amalgamation, merger, conveyance, transfer or
lease and as a consequence of a Change in Tax Law occurring after the date of
such consolidation, amalgamation, merger, conveyance, transfer or lease, to pay
Additional Amounts in respect of any tax, assessment or governmental charge
imposed on any Holder of Securities.
7. PAYMENT OF ADDITIONAL AMOUNTS.
If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having power to tax,
(y) any jurisdiction, other than the United States, from or through which
payment on the Securities is made by the Company or a successor corporation, or
its paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax shall at any time be
required by such jurisdiction (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Company or a successor
corporation under the Securities, the Company or a successor corporation shall
pay to each Holder of Securities as additional interest, such additional amounts
("Additional Amounts") as may be necessary in order that the net amounts paid to
such holder of such Securities who, with respect to any such tax, assessment or
other governmental charge, is not resident in, or a citizen of, such
jurisdiction, after such deduction or withholding, shall not be less than the
amount specified in such Securities to which such Holder is entitled; provided,
however, that the Company or a successor corporation shall not be required to
make any payment of Additional Amounts for or on account of:
(a) Any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership, limited liability company or corporation) and the
taxing jurisdiction or any political subdivision or territory or possession
thereof or area subject to its jurisdiction, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen
<PAGE> 105
or resident thereof or being or having been present or engaged in a trade or
business therein or having or having had a permanent establishment therein, (ii)
the presentation of a Note (where presentation is required) for payment on a
date more than 30 days after (x) the date on which such payment became due and
payable or (y) the date on which payment thereof is duly provided for, whichever
occurs later, or (iii) the presentation of a Note for payment in Bermuda or any
political subdivision thereof or therein, unless such Note could not have been
presented for payment elsewhere;
(b) Any estate, inheritance, gift, sales, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) Any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payment of principal of, premium, if any, or
any interest on the Securities;
(d) Any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of the
Note to comply with a request of the Company addressed to the Holder (i) to
provide information, documents or other evidence concerning the nationality,
residence or identity of the Holder or such beneficial owner or (ii) to make and
deliver any declaration or other similar claim (other than a claim for refund of
a tax, assessment or other governmental charge withheld by the Company) or
satisfy any information or reporting requirements, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) Any combination of items (a), (b), (c) and (d) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any premium or interest on, any Note to any Holder who is a
fiduciary or partnership or limited liability company or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of (x) Bermuda or any political subdivision or governmental authority
thereof or therein having the power to tax, (y) any jurisdiction, other than the
United States, from or through which payment on the Securities is made by the
Company or a successor corporation, or its paying agent in its capacity as such
or any political subdivision or governmental authority thereof or therein having
the power to tax or (z) any other jurisdiction, other than the United States, in
which the Company or a successor corporation is organized, or any political
subdivision or governmental authority thereof or therein having the power to tax
to be included in the income for tax purposes of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership, limited liability
company or beneficial owner who would not have been entitled to such Additional
Amounts had it been the Holder of such Note.
The Company shall provide the Trustee with the official acknowledgment
of the relevant taxing authority (or, if such acknowledgment is not available, a
certified copy thereof) evidencing the payment of the withholding taxes, if any,
by the Company. Copies of such documentation shall be made available to the
Holders of the Securities or the Paying Agent, as applicable, upon request
therefor.
All references in the Indenture to principal of, premium, if any, and
interest on the
<PAGE> 106
Securities shall include any Additional Amounts payable by the Company in
respect of such principal, such premium, if any, and such interest.
8. MANDATORY REDEMPTION.
Except as set forth in Section 9 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Securities.
9. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest and Special Interest thereon, if any, to the date of
repurchase (the "Change of Control Payment"); provided, however, that the
Company shall not be obligated to repurchase Securities pursuant to this
subparagraph in the event that it has exercised its rights to redeem all of the
Securities as described in Section 5(c) hereof. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale unless, (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net
Proceeds received by the Company (or such Restricted Subsidiary, as the case may
be) from such Asset Sale are applied within 360 days following the receipt of
such Net Proceeds (a) to repay, redeem or repurchase outstanding pari passu
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary;
provided that in the event that such Restricted Subsidiary is a Guarantor, the
Indebtedness to be redeemed or repurchased ranks at least pari passu to the
Guarantee given by such Restricted Subsidiary (b) to reinvest, or enter into a
legally binding agreement to reinvest, such Net Proceeds (or any portion
thereof) in assets that are used or useful in a Permitted Business or in the
Capital Stock of a Person engaged in a Permitted Business that is or immediately
thereafter becomes a Restricted Subsidiary or (c) in any combination permitted
by clauses (a) and (b). Pending the final application of any such Net Proceeds,
the Company or such Restricted Subsidiary may invest such Net Proceeds in Cash
Equivalents. The balance of such Net Proceeds, after the application of such Net
Proceeds as described in the immediately preceding clauses (a) and (b), shall
constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds
$15.0 million (taking into account income earned on such Excess Proceeds), the
Company shall be required to and, at the election of the Company, at an earlier
time, the Company, may make an offer to all Holders of Securities and pari passu
Indebtedness (an "Asset Sale Offer") to
<PAGE> 107
purchase the maximum principal amount of Securities and pari passu Indebtedness
that may be purchased out of the Excess Proceeds, at a purchase price in cash in
an amount equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of purchase, in accordance with the procedures set
forth in Article 3 of the Indenture and the agreements governing such pari passu
Indebtedness. To the extent that any Excess Proceeds remain after consummation
of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of
Securities and pari passu Indebtedness tendered into such Asset Sale Offer by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Securities and pari passu Indebtedness to be purchased on a pro rata basis.
Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero for purposes of the first sentence of this paragraph.
10. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed at least 30 days but not more than
60 days before the redemption date to each Holder whose Securities are to be
redeemed at its registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000, unless all
of the Securities held by a Holder are to be redeemed. On and after the
redemption date interest shall cease to accrue on Securities or portions thereof
called for redemption.
11. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Securities for a period of 15 days before a selection of
Securities to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
12. PERSONS DEEMED OWNERS.
The registered Holder of a Note may be treated as its owner for all
purposes under the Indenture.
13. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture, the Securities or any
Guarantee may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding Securities voting
as a single class, and any existing default or compliance with any provision of
the Indenture, the Securities or any Guarantee may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Securities
voting as a single class. Without the consent of any Holder of a Note, the
Indenture,
<PAGE> 108
the Securities or any Guarantee may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Securities in
addition to or in place of certificated Securities, to provide for the
assumption of the Company's or any Guarantor's obligations to Holders of the
Securities in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Securities or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA, or to allow any
Guarantor to execute a supplemental indenture to the Indenture.
14. DEFAULTS AND REMEDIES.
(a) Events of Default under the Indenture include: (i) the failure to
pay interest on, or Special Interest, if any, with respect to the Securities,
when the same becomes due and payable if such default continues for a period of
30 days, (ii) the failure to pay principal of any Securities when such principal
becomes due and payable, at maturity, upon redemption or otherwise; (iii)
failure by the Company or any Restricted Subsidiary to comply with Sections
4.10, 4.14 or 5.01 of the Indenture; (iv) failure by the Company or any
Restricted Subsidiary for 60 days after written notice form the Trustee or
holders of 25% or more of the aggregate principal amount of the Securities to
comply with any of its other agreements in the Indenture or this Note; (v)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default shall constitute failure to pay the principal of
such Indebtedness at Stated Maturity (after giving effect to any applicable
grace periods and any extensions thereof ) or results in the acceleration of
such Indebtedness prior to its Stated Maturity and, in each case, the principal
amount of any such other Indebtedness, together with the principal amount of any
other such Indebtedness which has not been paid or the maturity of which has
been so accelerated, aggregates $25.0 million or more; (vi) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments not subject
to appeal aggregating in excess of $25.0 million (net of applicable insurance
coverage which is acknowledged in writing by the insurer), which judgments are
not paid, discharged or stayed for a period of 60 days following the entry of
the final judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding and not paid, discharged or stayed to exceed
$25.0 million; (vii) except as permitted by the Indenture, any Guarantee of the
Securities of this series by a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any Guarantor that is a
Significant Subsidiary or any group of Guarantor, that, taken together, would
constitute a Significant Subsidiary, or any Person acting on behalf of any
Guarantor or Guarantors, shall deny or disaffirm its obligations under its
Guarantee; and (viii) certain events of bankruptcy or insolvency with respect to
the Company or any of the Company's Restricted Subsidiaries.
(b) If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the outstanding Securities,
by written notice, to the Company, may declare all the Securities to be due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all
<PAGE> 109
outstanding Securities shall become due and payable without further action or
notice. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of the
Securities notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest. The Holders of a
majority in principal amount of the then outstanding Securities by notice to the
Trustee may on behalf of the Holders of all of the Securities waive any existing
Default or Event of Default and its consequences under the Indenture, except a
continuing Default or Event of Default in the payment of interest on, or
principal of, the Securities. The Company shall deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company, upon
becoming aware of any Default or Event of Default, deliver to the Trustee a
statement specifying such Default or Event of Default.
15. ADDITIONAL RESTRICTED SUBSIDIARY GUARANTEES.
If any Restricted Subsidiary guarantees any Debt Securities issued by
the Company after ___________, then such Restricted Subsidiary shall become a
Guarantor and execute a supplemental indenture and deliver an Opinion of
Counsel, in accordance with the terms of the Indenture.
16. TRUSTEE DEALINGS WITH COMPANY.
The Trustee, in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Trustee.
17. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder, of the
Company or any Guarantor, as such, shall not have any liability for any
obligations of the Company or any Guarantor under the Securities, any Guarantee
or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
18. AUTHENTICATION.
This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (=
<PAGE> 110
Uniform Gifts to Minors Act).
20. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SECURITIES AND
RESTRICTED DEFINITIVE SECURITIES.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in the
Registration Rights Agreement.
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Asia Global Crossing Ltd.
Wessex House
45 Reid Street
Hamilton HM 12, Bermuda
Attention: Secretary of the Company
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
<PAGE> 111
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
<PAGE> 112
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $________
Date:
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
<PAGE> 113
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(1)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Note, or exchanges of a
part of another Global Security or Definitive Note for an interest in this
Global Security, have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of this Global Signature of
decrease increase Security authorized
in Principal in Principal following such officer of
Amount of this Amount of this decrease Trustee or
Date of Exchange Global Security Global Security (or increase) Note Custodian
---------------- --------------- --------------- ------------- --------------
<S> <C> <C> <C> <C>
</TABLE>
--------------
(1) This should be included only if the Note is issued in global form.
<PAGE> 114
EXHIBIT A-2
(Face of Regulation S Temporary Global Security)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR Securities IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL SECURITY
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
<PAGE> 115
REVERSE OF THIS SECURITY), (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT, (4) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (5) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
Securities, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE
PRICE IS $[______], THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[______], THE
ISSUE DATE IS _______, 2000, AND THE YIELD TO MATURITY ON THE ISSUE DATE IS
[_______]% PER ANNUM.
<PAGE> 116
CUSIP
[___]% [SERIES A] [SERIES B] SECURITIES DUE ___
No. $
ASIA GLOBAL CROSSING LTD.
promises to pay to Cede & Co.
or registered assigns, the principal sum of
Dollars on ______.
Interest Payment Dates: _______ and _______.
Record Dates: ________ and July _______.
ASIA GLOBAL CROSSING LTD.
By:
Name:
Title:
By:
Name:
Title:
This is one of the
Securities referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: Dated: ______
Name:
Title:
<PAGE> 117
(Back of Regulation S Temporary Global Security)
_____% [Series A] [Series B] Securities due ____
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated. For the purposes of this
Note, the term "Securities" shall refer only to the Company's [____]% Securities
due ____.
1. INTEREST.
Global Crossing Holdings Ltd., a Bermuda company (the "Company"),
promises to pay interest on the principal amount of this Note at __% per annum
from _______, until maturity [and shall pay the Special Interest payable
pursuant to Section __ of the Registration Rights Agreement referred to below].
The Company shall pay interest and Special Interest semi-annually on __________
and _______ of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be ________. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is
1.0% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Special Interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
Until this Regulation S Temporary Global Security is exchanged for one
or more Regulation S Permanent Global Securities, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Security shall in all other respects be
entitled to the same benefits as other Securities under the Indenture.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) and Special Interest to the Persons who are registered Holders of
Securities at the close of business on the ________ or ______ next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Securities shall
be payable as to principal, premium and Special Interest, if any, and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Special Interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and
<PAGE> 118
provided that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, premium and Special Interest
on, all Global Securities and all other Securities the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent.
Such payment shall be 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.
3. PAYING AGENT AND REGISTRAR.
Initially, United States Trust Company of New York, the Trustee under
the Indenture, shall act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Restricted Subsidiaries may act in any such capacity.
4. INDENTURE.
The Company issued the Securities under an Indenture dated as of
October __, 2000 ("Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) below and in Section 6
hereof, the Securities shall not be redeemable at the Company's option at any
time.
(b) At any time prior to their maturity, the Securities may be
redeemed at the option of the Company, in whole but not in part, upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60 days'
prior notice (but in no event may any such redemption occur more than 90 days
after the occurrence of such Change of Control) mailed by first-class mail to
each Holder's registered address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued and
unpaid interest, if any, to, the date of redemption.
(c) Any redemption pursuant to this Section 5 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. OPTIONAL TAX REDEMPTION.
The Securities shall be subject to redemption at the option of the
Company or a successor corporation at any time, in whole but not in part, upon
not less than 30 nor more than 60 days' notice, at a redemption price equal to
the principal amount thereof, plus accrued and
<PAGE> 119
unpaid interest thereon to the redemption date if, as a result of any change in
or amendment to the laws or any regulations or ruling promulgated thereunder of
(x) Bermuda or any political subdivision or governmental authority thereof or
therein having the power to tax, (y) any jurisdiction, other than the United
States, from or through which payment on the Securities is made by the Company
or a successor corporation, or its paying agent in its capacity as such or any
political subdivision or governmental authority thereof or therein having the
power to tax or (z) any other jurisdiction, other than the United States, in
which the Company or a successor corporation is organized, or any political
subdivision or governmental authority thereof or therein having the power to
tax, or any change in the official application or interpretation of such laws,
regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such jurisdiction (or such political subdivision or
taxing authority) is a party (a "Change in Tax Law"), which becomes effective on
or after ____________, the Company or a successor corporation is or would be
required on the next succeeding interest payment date to pay Additional Amounts
with respect to the Securities (as described under Section 7 hereof), and the
payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Company or a successor corporation.
In addition, the Securities shall be subject to redemption at the
option of the Company at any time, in whole but not in part, upon not less than
30 nor more than 60 days' notice, at a redemption price equal to the principal
amount thereof, plus accrued and unpaid interest thereon to the redemption date,
if the Person formed by a consolidation or amalgamation of the Company or into
which the Company is merged or to which the Company conveys, transfers or leases
its properties and assets substantially as an entirety is required, as a
consequence of such consolidation, amalgamation, merger, conveyance, transfer or
lease and as a consequence of a Change in Tax Law occurring after the date of
such consolidation, amalgamation, merger, conveyance, transfer or lease, to pay
Additional Amounts in respect of any tax, assessment or governmental charge
imposed on any Holder of Securities.
7. PAYMENT OF ADDITIONAL AMOUNTS.
If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of (x) Bermuda or any political
subdivision or governmental authority thereof or therein having power to tax,
(y) any jurisdiction, other than the United States, from or through which
payment on the Securities is made by the Company or a successor corporation, or
its paying agent in its capacity as such or any political subdivision or
governmental authority thereof or therein having the power to tax or (z) any
other jurisdiction, other than the United States, in which the Company or a
successor corporation is organized, or any political subdivision or governmental
authority thereof or therein having the power to tax shall at any time be
required by such jurisdiction (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Company or a successor
corporation under the Securities, the Company or a successor corporation shall
pay to each Holder of Securities as additional interest, such additional amounts
("Additional Amounts") as may be necessary in order that the net amounts paid to
such holder of such Securities who, with respect to any such tax, assessment or
other governmental charge, is not resident in, or a citizen of, such
jurisdiction, after such deduction or withholding, shall not be less than the
amount specified in
<PAGE> 120
such Securities to which such Holder is entitled; provided, however, that the
Company or a successor corporation shall not be required to make any payment of
Additional Amounts for or on account of:
(a) Any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership, limited liability company or corporation) and the
taxing jurisdiction or any political subdivision or territory or possession
thereof or area subject to its jurisdiction, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident thereof or being or having
been present or engaged in a trade or business therein or having or having had a
permanent establishment therein, (ii) the presentation of a Note (where
presentation is required) for payment on a date more than 30 days after (x) the
date on which such payment became due and payable or (y) the date on which
payment thereof is duly provided for, whichever occurs later, or (iii) the
presentation of a Note for payment in Bermuda or any political subdivision
thereof or therein, unless such Note could not have been presented for payment
elsewhere;
(b) Any estate, inheritance, gift, sales, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) Any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payment of principal of, premium, if any, or
any interest on the Securities;
(d) Any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure by the Holder or the beneficial owner of
the Note to comply with a request of the Company addressed to the Holder (i) to
provide information, documents or other evidence concerning the nationality,
residence or identity of the Holder or such beneficial owner or (ii) to make and
deliver any declaration or other similar claim (other than a claim for refund of
a tax, assessment or other governmental charge withheld by the Company) or
satisfy any information or reporting requirements, which, in the case of (i) or
(ii), is required or imposed by a statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) Any combination of items (a), (b), (c) and (d) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any premium or interest on, any Note to any Holder who is a
fiduciary or partnership or limited liability company or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of (x) Bermuda or any political subdivision or governmental authority
thereof or therein having the power to tax, (y) any jurisdiction, other than the
United States, from or through which payment on the Securities is made by the
Company or a successor corporation, or its paying agent in its capacity as such
or any political subdivision or governmental authority thereof or therein having
the power to tax or (z) any other jurisdiction, other than the United States, in
which the Company or a successor corporation is organized, or
<PAGE> 121
any political subdivision or governmental authority thereof or therein having
the power to tax to be included in the income for tax purposes of a beneficiary
or settlor with respect to such fiduciary or a member of such partnership,
limited liability company or beneficial owner who would not have been entitled
to such Additional Amounts had it been the Holder of such Note.
The Company shall provide the Trustee with the official acknowledgment
of the relevant taxing authority (or, if such acknowledgment is not available, a
certified copy thereof) evidencing the payment of the withholding taxes, if any,
by the Company. Copies of such documentation shall be made available to the
Holders of the Securities or the Paying Agent, as applicable, upon request
therefor.
All references in the Indenture to principal of, premium, if any, and
interest on the Securities shall include any Additional Amounts payable by the
Company in respect of such principal, such premium, if any, and such interest.
8. MANDATORY REDEMPTION.
Except as set forth in Section 9 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Securities.
9. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Securities at a
purchase price equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest and Special Interest thereon, if any, to the date of
repurchase (the "Change of Control Payment"); provided, however, that the
Company shall not be obligated to repurchase Securities pursuant to this
subparagraph in the event that it has exercised its rights to redeem all of the
Securities as described in Section 5(c) hereof. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale unless, (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officer's
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net
Proceeds received by the Company (or such Restricted Subsidiary, as the case may
be) from such Asset Sale are applied within 360 days following the receipt of
such Net Proceeds (a) to repay, redeem or repurchase outstanding pari passu
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary;
provided that in the event that such Restricted Subsidiary is a Guarantor, the
Indebtedness to be redeemed or repurchased ranks
<PAGE> 122
at least pari passu to the Guarantee given by such Restricted Subsidiary, (b) to
reinvest, or enter into a legally binding agreement to reinvest, such Net
Proceeds (or any portion thereof) in assets that are used or useful in a
Permitted Business or in the Capital Stock of a Person engaged in a Permitted
Business that is or immediately thereafter becomes a Restricted Subsidiary or
(c) in any combination permitted by clauses (a) and (b). Pending the final
application of any such Net Proceeds, the Company or such Restricted Subsidiary
may invest such Net Proceeds in Cash Equivalents. The balance of such Net
Proceeds, after the application of such Net Proceeds as described in the
immediately preceding clauses (a) and (b), shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds
$15.0 million (taking into account income earned on such Excess Proceeds), the
Company shall be required to and, at the election of the Company, at an earlier
time, the Company, may make an offer to all Holders of Securities and pari passu
Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of
Securities and pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase, in accordance with the procedures set forth in Article 3 of the
Indenture and the agreements governing such pari passu Indebtedness. To the
extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Securities and
pari passu Indebtedness tendered into such Asset Sale Offer by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Securities
and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion
of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero
for purposes of the first sentence of this paragraph.
10. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed at least 30 days but not more than
60 days before the redemption date to each Holder whose Securities are to be
redeemed at its registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000, unless all
of the Securities held by a Holder are to be redeemed. On and after the
redemption date interest shall cease to accrue on Securities or portions thereof
called for redemption.
11. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any
<PAGE> 123
Securities for a period of 15 days before a selection of Securities to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
This Regulation S Temporary Global Security is exchangeable in whole or
in part for one or more Global Securities only (i) on or after the termination
of the 40-day restricted period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Security for one or more Global Securities, the
Trustee shall cancel this Regulation S Temporary Global Security.
12. PERSONS DEEMED OWNERS.
The registered Holder of a Note may be treated as its owner for all
purposes under the Indenture.
13. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture, the Securities or any
Guarantee may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding Securities voting
as a single class, and any existing default or compliance with any provision of
the Indenture, the Securities or any Guarantee may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Securities
voting as a single class. Without the consent of any Holder of a Note, the
Indenture, the Securities or any Guarantee may be amended or supplemented to
cure any ambiguity, defect or inconsistency, to provide for uncertificated
Securities in addition to or in place of certificated Securities, to provide for
the assumption of the Company's or any Guarantor's obligations to Holders of the
Securities in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Securities or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA, or to allow any
Guarantor to execute a supplemental indenture to the Indenture.
14. DEFAULTS AND REMEDIES.
(a) Events of Default under the Indenture include: (i) the failure to
pay interest on, or Special Interest, if any, with respect to the Securities,
when the same becomes due and payable if such default continues for a period of
30 days, (ii) the failure to pay principal of any Securities when such principal
becomes due and payable, at maturity, upon redemption or otherwise; (iii)
failure by the Company or any Restricted Subsidiary to comply with Sections
4.10, 4.14 or 5.01 of the Indenture; (iv) failure by the Company or any
Restricted Subsidiary for 60 days after written notice from the Trustee or
holder of 25% or more of the aggregate principal amount of the Securities to
comply with any of its other agreements in the Indenture or this Note; (v)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries)
whether such Indebtedness or guarantee
<PAGE> 124
now exists, or is created after the date of the Indenture, which default shall
constitute failure to pay the principal of such Indebtedness at Stated Maturity
(after giving effect to any applicable grace periods and any extensions thereof)
or results in the acceleration of such Indebtedness prior to its Stated Maturity
and, in each case, the principal amount of any such other Indebtedness, together
with the principal amount of any other such Indebtedness which has not been paid
or the maturity of which has been so accelerated, aggregates $25.0 million or
more; (vi) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments not subject to appeal aggregating in excess of $25.0 million
(net of applicable insurance coverage which is acknowledged in writing by the
insurer), which judgments are not paid, discharged or stayed for a period of 60
days following the entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and not
paid, discharged or stayed to exceed $25.0 million; (vii) except as permitted by
the Indenture, any Guarantee of the Securities of this series by a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Guarantor that is a Significant Subsidiary or any group of
Guarantors that, take together would constitute a Significant Subsidiary, or any
Person acting on behalf of any Guarantor or Guarantors, , shall deny or
disaffirm its obligations under its Guarantee; and (viii) certain events of
bankruptcy or insolvency with respect to the Company or any of the Company's
Restricted Subsidiaries.
(b) If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the outstanding Securities,
by written notice to the Company, may declare all the Securities to be due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding
Securities shall become due and payable without further action or notice.
Holders may not enforce the Indenture or the Securities except as provided in
the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of the
Securities notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest. The Holders of a
majority in principal amount of the then outstanding Securities by notice to the
Trustee may on behalf of the Holders of all of the Securities waive any existing
Default or Event of Default and its consequences under the Indenture, except a
continuing Default or Event of Default in the payment of interest on, or
principal of, the Securities. The Company shall deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company, upon
becoming aware of any Default or Event of Default, deliver to the Trustee a
statement specifying such Default or Event of Default.
15. ADDITIONAL RESTRICTED SUBSIDIARY GUARANTEES.
If any Restricted Subsidiary guarantees any Debt Securities issued by
the Company after _________, then such Restricted Subsidiary shall become a
Guarantor and execute a supplemental indenture and deliver an Opinion of
Counsel, in accordance with the terms of the Indenture.
<PAGE> 125
16. TRUSTEE DEALINGS WITH COMPANY.
The Trustee, in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Trustee.
17. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder, of the
Company or any Guarantor, as such, shall not have any liability for any
obligations of the Company or any Guarantor under the Securities, any Guarantee
or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
18. AUTHENTICATION.
This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SECURITIES AND
RESTRICTED DEFINITIVE SECURITIES.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in the
Registration Rights Agreement.
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
<PAGE> 126
Asia Global Crossing Ltd.
Wessex House
45 Reid Street
Hamilton HM 12, Bermuda
Attention: Secretary of the Company
<PAGE> 127
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
Your Signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.
<PAGE> 128
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $___________
--------------------------------------------------------------------------------
Date:
Your Signature:
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.
<PAGE> 129
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL SECURITY
The following exchanges of a part of this Regulation S Temporary
Global Security for an interest in another Global Security, or of other
Restricted Global Securities for an interest in this Regulation S Temporary
Global Security, have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of this Global Signature of
decrease increase Security authorized
in Principal in Principal following such officer of
Date of Amount of this Amount of this decrease Trustee or
Exchange Global Security Global Security (or increase) Note Custodian
-------- --------------- --------------- ------------- --------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 130
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Asia Global Crossing Ltd.
45 Reid Street
Hamilton HM 12, Bermuda
Attention: Secretary of the Company
United States Trust Company of New York
114 West 47th Street - 25th Floor
New York, New York 10036
Attention: Corporate Trust Division
Re: [ ]% Securities due
Reference is hereby made to the Indenture, dated as of October __,
2000 (the "Indenture"), among Asia Global Crossing Ltd., as issuer (the
"Company"), the Guarantors and United States Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A
GLOBAL SECURITY OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Note for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the
Private
<PAGE> 131
Placement Legend printed on the 144A Global Security and/or the Definitive
Note and in the Indenture and the Securities Act.
2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
TEMPORARY REGULATION S GLOBAL SECURITY, THE REGULATION S GLOBAL SECURITY OR
A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the Transfer is not being made to a person in the United States
and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is
being made prior to the expiration of the Restricted Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the
Regulation S Global Security, the Temporary Regulation S Global Security
and/or the Definitive Note and in the Indenture and the Securities Act.
3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES
ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Securities and Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States,
and accordingly the Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
<PAGE> 132
4. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Securities or Restricted Definitive
Securities and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ,
<PAGE> 133
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Security (CUSIP________), or
(ii) Regulation S Global Security (CUSIP________): or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(d) a beneficial interest in the:
(i) 144A Global Security (CUSIP________), or
(ii) Regulation S Global Security (CUSIP________), or
(iii) Unrestricted Global Security (CUSIP________); or
(e) a Restricted Definitive Note; or
(f) an Unrestricted Definitive Note, in accordance with the terms of the
Indenture.
<PAGE> 134
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
Asia Global Crossing Ltd.
45 Reid Street
Hamilton HM 12, Bermuda
Attention: Secretary of the Company
United States Trust Company of New York
114 West 47th Street - 25th Floor
New York, New York 10036
Attention: Corporate Trust Division
Re: ______% Securities due
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of October __, 2000
(the "Indenture"), among Asia Global Crossing Ltd., as issuer (the "Company"),
the Guarantors and [United States Trust Company of New York], as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY.
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Security for a beneficial interest in an Unrestricted Global Security in
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Securities and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Security is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
<PAGE> 135
(b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Security for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Owner's
Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Security, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES.
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Security for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
<PAGE> 136
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Security, Regulation S Global Security, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Securities and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________________
[Insert Name of Owner]
By:_______________________________
Name:
Title:
Dated: __________
<PAGE> 137
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of October__, 2000 (the "Indenture") among
Asia Global Crossing Ltd., the Guarantors signatories thereto and United States
Trust Company of New York, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Securities (as
defined in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and
premium, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Securities and to the Trustee pursuant to the Guarantee and the
Indenture are expressly set forth in Article 10 of the Indenture and reference
is hereby made to the Indenture for the precise terms of the Guarantee. Each
Holder of a Note, by accepting the same, (a) agrees to and shall be bound by
such provisions and (b) appoints the Trustee attorney-in-fact for such purpose.
[GUARANTOR(S)]
BY: ____________________________
Name:
Title:
<PAGE> 138
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
____________________, among _____________________ (the "Guarantor"), a
subsidiary of Asia Global Crossing Ltd. (or its successor), a company organized
under the laws of Bermuda (the "Company"), and United States Trust Company of
New York, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of October 20, 2000, providing
for the issuance of an aggregate principal amount at maturity of $[___________]
of [__]%Securities due ___ (the "Securities");
WHEREAS, Section 4.22 of the Indenture provides that, under certain
circumstances, the Company is required to cause the Guarantor to execute and
deliver to the Trustee a Subsidiary Guarantee on the terms and conditions set
forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. INDENTURE PROVISION PURSUANT TO WHICH SUBSIDIARY GUARANTEE IS GIVEN.
This Supplemental Indenture is being executed and delivered pursuant to Section
4.22 of the Indenture.
3. AGREEMENTS TO SUBSIDIARY GUARANTEE. The Guarantor hereby agrees as
follows:
(a) The Guarantor, jointly and severally with all other Guarantors, if
any, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
regardless of the validity and enforceability of the Indenture, the Securities
and the obligations of the Company under the Indenture and the
<PAGE> 139
Securities, that:
(i) the principal of, premium and Special Interest, if any,
and interest on the Securities shall be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of, premium, interest and Special Interest, if any, on the
Securities, to the extent lawful, and all other obligations of the Company to
the Holders or the Trustee thereunder shall be promptly paid in full, all in
accordance with the terms thereof; and
(ii) in case of any extension of time for payment or renewal
of any Securities or any of such other obligations, that the same shall be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantor under this Supplemental Indenture and its Subsidiary Guarantee shall
be limited to such amount as will not, after giving effect thereto, and to all
other liabilities of the Guarantor, result in such amount constituting a
fraudulent transfer or conveyance.
4. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
(a) To evidence its Subsidiary Guarantee set forth in this Supplemental
Indenture, the Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Annex A hereto shall be endorsed by an
officer of such Guarantor on each Note authenticated and delivered by the
Trustee after the date hereof.
(b) Notwithstanding the foregoing, the Guarantor hereby agrees that its
Subsidiary Guarantee set forth herein shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
(c) If an officer whose signature is on this Supplemental Indenture or
on the Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of the Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Subsidiary
Guarantee set forth in this Supplemental Indenture on behalf of the Guarantor.
(e) The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, regardless of the validity, regularity or enforceability of the
Securities or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment
<PAGE> 140
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
(f) The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that its Subsidiary
Guarantee made pursuant to this Supplemental Indenture will not be discharged
except by complete performance of the obligations contained in the Securities
and the Indenture or pursuant to Section 5(b) of this Supplemental Indenture.
(g) If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Supplemental 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 Guarantor, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereof and thereafter all rights and remedies of the Guarantor,
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
(h) The Guarantor hereby 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 Company or any other
Guarantor as a result of any payment by such Guarantor under its Subsidiary
Guarantee. The Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of the
Subsidiary Guarantee made pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of such
obligations as provided in Article 6, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the purpose
of the Subsidiary Guarantee made pursuant to this Supplemental Indenture.
(i) The Guarantor shall have the right to seek contribution from any
other non-paying Guarantor, if any, so long as the exercise of such right does
not impair the rights of the Holders under the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
(j) The Guarantor 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, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of the Indenture or this Subsidiary Guarantee; and
the Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the
<PAGE> 141
execution of every such power as though no such law had been enacted.
5. GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS
(a) Except as set forth in Articles 4 and 5 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the Securities
shall prevent any consolidation or merger of the Guarantor with or into the
Company or any other Guarantor or shall prevent any transfer, sale or conveyance
of the property of the Guarantor as an entirety or substantially as an entirety,
to the Company or any other Guarantor.
(b) Except as set forth in Article 5 of the Indenture, upon the sale or
disposition of all of the Capital Stock of the Guarantor by the Company or the
Subsidiary of the Company, or upon the consolidation or merger of the Guarantor
with or into any Person, or the sale of all or substantially all of the assets
of the Guarantor (in each case, other than to an Affiliate of the Company), such
Guarantor shall be deemed automatically and unconditionally released and
discharged from all obligations under this Subsidiary Guarantee without any
further action required on the part of the Trustee or any Holder if no Default
shall have occurred and be continuing; provided, that in the event of an Asset
Sale (including a sale of the Capital Stock of the Guarantor), the Net Cash
Proceeds therefrom are treated in accordance with Section 4.10 of the Indenture.
Except with respect to transactions set forth in the preceding sentence, the
Company and the Guarantor covenant and agree that upon any such consolidation,
merger or transfer of assets, the performance of all covenants and conditions of
this Supplemental Indenture to be performed by such Guarantor shall be expressly
assumed by supplemental indenture satisfactory in form and substance to the
Trustee, by the corporation formed by such consolidation, or into which the
Guarantor shall have merged, or by the corporation which shall have acquired
such property. Upon receipt of an Officers' Certificate of the Company or the
Guarantor, as the case may be, to the effect that the Company or such Guarantor
has complied with the first sentence of this Section 5(b), the Trustee shall
execute any documents reasonably requested by the Company or the Guarantor, at
the cost of the Company or such Guarantor, as the case may be, in order to
evidence the release of such Guarantor from its obligations under its Subsidiary
Guarantee endorsed on the Securities and under the Indenture and this
Supplemental Indenture.
6. RELEASES UPON RELEASE OF SUBSIDIARY GUARANTEE OF GUARANTEED
INDEBTEDNESS.
Concurrently with the release or discharge of the Guarantor's guarantee
of the payment of [DESCRIBE INDEBTEDNESS THE GUARANTEE OF WHICH GAVE RISE TO THE
DELIVERY OF THIS SUPPLEMENTAL INDENTURE] ("Guaranteed Debt") (other than a
release or discharge by or as a result of payment under such guarantee of
Guaranteed Indebtedness), the Guarantor shall be automatically and
unconditionally released and relieved of its obligations under this Supplemental
Indenture and its Subsidiary Guarantee made pursuant to Section 4 of this
Supplemental Indenture. Upon delivery by the Company to the Trustee of an
Officer's Certificate to the effect that such release or discharge has occurred,
the Trustee shall execute any documents reasonably required in order to evidence
the release of the Guarantor from its obligations under this Supplemental
Indenture and its Subsidiary Guarantee made pursuant
<PAGE> 142
hereto; provided such documents shall not affect or impair the rights of the
Trustee and Paying Agent under Section 7.07 of the Indenture.
7. NEW YORK LAW TO GOVERN.
The internal law of the State of New York shall govern and be used to
construe this Supplemental Indenture.
8. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
9. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall not
effect the construction hereof.
[Signatures on following page]
<PAGE> 143
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
<TABLE>
<S> <C>
Dated: [Guarantor]
By:
Name:
Title:
Dated: as Trustee
By:
Name:
Title:
</TABLE>
<PAGE> 144
ANNEX A TO SUPPLEMENTAL INDENTURE
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON SECURITY
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of October__, 2000 (the "Indenture") among
Asia Global Crossing Ltd., the Guarantors signatories thereto and United States
Trust Company of New York, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Securities (as
defined in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and
premium, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Securities and to the Trustee pursuant to the Subsidiary Guarantee
and the Indenture are expressly set forth in Article 10 of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall
be bound by such provisions and (b) appoints the Trustee attorney-in-fact of
such Holder for such purpose.
[Guarantor]
By:
Name:
Title:
<PAGE> 145
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(i)(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(2) 7.07
(c) 7.06; 12.02
(d) 7.06
314(a) 4.03; 12.02
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05; 12.02
(A)(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
</TABLE>
N.A. means not applicable
* This Cross-Reference Table is not part of the Indenture.
<PAGE> 146
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Recitals of the Company 1
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01. Definitions 1
Section 1.02. Other Definitions 21
Section 1.03. Trust Indenture Act Definitions 22
Section 1.04. Rules of Construction 23
ARTICLE 2. THE SECURITIES 23
Section 2.01. Form and Dating 23
Section 2.02. Execution and Authentication 25
Section 2.03. Registrar and Paying Agent 26
Section 2.04. Paying Agent to Hold Money in Trust 26
Section 2.05. Holder Lists 26
Section 2.06. Transfer and Exchange 27
Section 2.07. Replacement Securities 41
Section 2.08. Outstanding Securities 41
Section 2.09. Treasury Securities 41
Section 2.10. Temporary Securities 42
Section 2.11. Cancellation 42
Section 2.12. Defaulted Interest 42
Section 2.13. CUSIP Numbers 42
ARTICLE 3. REDEMPTION AND PREPAYMENT 43
Section 3.01. Notices to Trustee 43
Section 3.02. Selection of Securities to Be Redeemed 43
Section 3.03. Notice of Redemption 43
Section 3.04. Effect of Notice of Redemption 44
Section 3.05. Deposit of Redemption Price 44
Section 3.06. Securities Redeemed in Part 45
Section 3.07. Optional Redemption 45
Section 3.08. Optional Tax Redemption 46
Section 3.09. Payment of Additional Amounts 47
Section 3.10. Mandatory Redemption 49
Section 3.11. Offer to Purchase by Application of Excess Proceeds 49
ARTICLE 4. COVENANTS 51
Section 4.01. Payment of Securities 51
Section 4.02. Maintenance of Office or Agency 51
</TABLE>
<PAGE> 147
<TABLE>
<S> <C>
Section 4.03. Reports 52
Section 4.04. Compliance Certificate 52
Section 4.05. Taxes 53
Section 4.06. Stay, Extension and Usury Laws 53
Section 4.07. Restricted Payments 53
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries 57
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock 58
Section 4.10. Asset Sales 61
Section 4.11. Transactions with Affiliates 63
Section 4.12. Liens 64
Section 4.13. Corporate Existence 64
Section 4.14. Offer to Repurchase Upon Change of Control 64
Section 4.15. Business Activities 65
Section 4.16. [Reserved] 66
Section 4.17. [Reserved] 66
Section 4.18. Issuances and Sales of Equity Interests in Wholly Owned Restricted
Subsidiaries 66
Section 4.19. Payments For Consent 66
Section 4.20. Money for Payments to Be Held In Trust 66
Section 4.21. Future Guarantees 68
ARTICLE 5. SUCCESSORS 68
Section 5.01. Merger, Consolidation, or Sale of Assets 68
Section 5.02. Successor Corporation Substituted 69
ARTICLE 6. DEFAULTS AND REMEDIES 69
Section 6.01. Events of Default 69
Section 6.02. Acceleration 71
Section 6.03. Other Remedies 72
Section 6.04. Waiver of Past Defaults 72
Section 6.05. Control by Majority 72
Section 6.06. Limitation on Suits 73
Section 6.07. Rights of Holders of Securities to Receive Payment 73
Section 6.08. Collection Suit by Trustee 73
Section 6.09. Trustee May File Proofs of Claim 74
Section 6.10. Priorities 74
Section 6.11. Undertaking for Costs 75
ARTICLE 7. TRUSTEE 75
Section 7.01. Duties of Trustee 75
Section 7.02. Rights of Trustee 76
Section 7.03. Individual Rights of Trustee 77
</TABLE>
<PAGE> 148
<TABLE>
<S> <C>
Section 7.04. Trustee's Disclaimer 77
Section 7.05. Notice of Defaults 77
Section 7.06. Reports by Trustee to Holders of the Securities 78
Section 7.07. Compensation and Indemnity 78
Section 7.08. Replacement of Trustee 79
Section 7.09. Successor Trustee by Merger, etc 80
Section 7.10. Eligibility; Disqualification 81
Section 7.11. Preferential Collection of Claims Against Company 81
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE 81
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance 81
Section 8.02. Legal Defeasance and Discharge 81
Section 8.03. Covenant Defeasance 82
Section 8.04. Conditions to Legal or Covenant Defeasance 82
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions 84
Section 8.06. Repayment to Company 84
Section 8.07. Reinstatement 85
Section 8.08. Survival 85
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER 85
Section 9.01. Without Consent of Holders of Securities 85
Section 9.02. With Consent of Holders of Securities 86
Section 9.03. Compliance with Trust Indenture Act 88
Section 9.04. Revocation and Effect of Consents 88
Section 9.05. Notation on or Exchange of Securities 88
Section 9.06. Trustee to Sign Amendments, etc 88
ARTICLE 10. GUARANTEES 89
Section 10.01. Guarantee 89
Section 10.02. Limitation on Guarantor Liability 90
Section 10.03. Execution and Delivery of Guarantee 91
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms 91
Section 10.05. Releases Following Sale of Assets 92
ARTICLE 11. SATISFACTION AND DISCHARGE 92
Section 11.01. Satisfaction and Discharge of Indenture 92
Section 11.02. Application of Trust Money 93
ARTICLE 12. MISCELLANEOUS 94
Section 12.01. Trust Indenture Act Controls 94
Section 12.02. Notices 94
Section 12.03. Communication by Holders of Securities with Other Holders of Securities 95
</TABLE>
<PAGE> 149
<TABLE>
<S> <C>
Section 12.04. Certificate and Opinion as to Conditions Precedent 96
Section 12.05. Statements Required in Certificate or Opinion 96
Section 12.06. Rules by Trustee and Agents 96
Section 12.07. No Personal Liability of Directors, Officers, Employees and Shareholders 97
Section 12.08. Governing Law 97
Section 12.09. Currency Indemnity 97
Section 12.10. Consent to Jurisdiction and Service 98
Section 12.11. No Adverse Interpretation of Other Agreements 99
Section 12.12. Successors 99
Section 12.13. Severability 99
Section 12.14. Counterpart Originals 99
Section 12.15. Table of Contents, Headings, etc 99
</TABLE>
