CINCINNATI BELL INC. AND THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO 7% SENIOR NOTES DUE 2015 INDENTURE Dated as of February 16, 2005 THE BANK OF NEW YORK Trustee
AND
THE
GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
7% SENIOR
NOTES DUE 2015
__________________
Dated as
of February 16, 2005
__________________
THE BANK
OF NEW YORK
Trustee
__________________
CROSS-REFERENCE
TABLE
|
TIA |
|
|
Section
|
Section
|
|
310(a)(1) |
8.10 |
|
(a)(2) |
8.10 |
|
(a)(3) |
8.12 |
|
(a)(4) |
N.A. |
|
(b) |
8.08;
8.10 |
|
(c) |
N.A. |
|
311(a) |
8.11 |
|
(b) |
8.11 |
|
(c) |
N.A. |
|
312(a) |
2.05 |
|
(b) |
13.03 |
|
(c) |
13.03 |
|
313(a) |
8.06 |
|
(b)(1) |
N.A. |
|
(b)(2) |
8.06 |
|
(c) |
13.02 |
|
(d) |
8.06 |
|
314(a) |
4.02;
13.02 |
|
(b) |
N.A. |
|
(c)(1) |
13.04 |
|
(c)(2) |
13.04 |
|
(c)(3) |
N.A. |
|
(d) |
N.A. |
|
(e) |
13.05 |
|
(f) |
4.06 |
|
315(a) |
8.01 |
|
(b) |
8.05;
13.02 |
|
(c) |
8.01 |
|
(d) |
8.01 |
|
(e) |
7.11 |
|
316(a)
(last sentence) |
13.06 |
|
(a)(1)(A) |
7.05 |
|
(a)(1)(B) |
7.04 |
|
(a)(2) |
N.A. |
|
(b) |
7.07 |
|
317(a)(1) |
7.08 |
|
(a)(2) |
7.09 |
|
(b) |
2.04 |
|
318(a)
|
13.01
|
|
Note: |
This
Cross-Reference Table shall not, for any purpose, be deemed to be part of
the Indenture. |
TABLE
OF CONTENTS
Page
|
ARTICLE
1
DEFINITIONS
AND ACCOUNTING TERMS | ||
|
SECTION
1.01. |
Definitions |
1 |
|
SECTION
1.02. |
Incorporation
by Reference of Trust Indenture Act |
23 |
|
SECTION
1.03. |
Rules
of Construction |
23 |
|
ARTICLE
2
THE
NOTES | ||
|
SECTION
2.01. |
Form
and Dating |
24 |
|
SECTION
2.02. |
Execution
and Authentication |
24 |
|
SECTION
2.03. |
Registrar
and Paying Agent |
25 |
|
SECTION
2.04. |
Paying
Agent To Hold Money in Trust |
25 |
|
SECTION
2.05. |
Holder
Lists |
26 |
|
SECTION
2.06. |
Transfer
and Exchange |
26 |
|
SECTION
2.07. |
Replacement
Notes |
27 |
|
SECTION
2.08. |
Outstanding
Notes |
27 |
|
SECTION
2.09. |
Temporary
Notes |
28 |
|
SECTION
2.10. |
Cancelation |
28 |
|
SECTION
2.11. |
Defaulted
Interest |
28 |
|
SECTION
2.12. |
CUSIP
Numbers |
28 |
|
SECTION
2.13. |
Designations |
28 |
|
SECTION
2.14. |
Issuance
of Additional Notes |
28 |
|
ARTICLE
3
REDEMPTION | ||
|
SECTION
3.01. |
Notices
to Trustee |
29 |
|
SECTION
3.02. |
Selection
of Notes To Be Redeemed |
30 |
|
SECTION
3.03. |
Notice
of Redemption |
30 |
|
SECTION
3.04. |
Effect
of Notice of Redemption |
31 |
|
SECTION
3.05. |
Deposit
of Redemption Price |
31 |
|
SECTION
3.06. |
Notes
Redeemed in Part |
31 |
-i-
Page
|
ARTICLE
4
AFFIRMATIVE
COVENANTS | ||
|
SECTION
4.01. |
Payment
of Notes |
31 |
|
SECTION
4.02. |
Commission
Reports |
32 |
|
SECTION
4.03. |
Preservation
of Corporate Existence |
32 |
|
SECTION
4.04. |
[Intentionally
Omitted] |
32 |
|
SECTION
4.05. |
[Intentionally
Omitted] |
32 |
|
SECTION
4.06. |
Compliance
Certificate |
32 |
|
SECTION
4.07. |
[Intentionally
Omitted] |
32 |
|
SECTION
4.08. |
[Intentionally
Omitted] |
32 |
|
SECTION
4.09. |
Offer
To Purchase upon Change of Control |
33 |
|
SECTION
4.10. |
Offer
To Purchase by Application of Excess Proceeds |
34 |
|
SECTION
4.11. |
[Intentionally
Omitted] |
35 |
|
SECTION
4.12. |
Further
Assurances |
35 |
|
SECTION
4.13. |
Future
Guarantors |
35 |
|
ARTICLE
5
NEGATIVE
COVENANTS APPLICABLE TO COMPANY AND ITS SUBSIDIARIES | ||
|
SECTION
5.01. |
Stay,
Extension and Usury Laws |
35 |
|
SECTION
5.02. |
Restricted
Payments |
35 |
|
SECTION
5.03. |
Dividend
and Other Payment Restrictions Affecting Subsidiaries |
38 |
|
SECTION
5.04. |
Incurrence
of Indebtedness and Issuance of Preferred Stock |
39 |
|
SECTION
5.05. |
Asset
Dispositions |
42 |
|
SECTION
5.06. |
Transactions
with Affiliates |
43 |
|
SECTION
5.07. |
Limitation
on Liens |
45 |
|
SECTION
5.08. |
Limitation
on Issuances and Sales of Capital Stock of Subsidiaries |
45 |
|
SECTION
5.09. |
[Intentionally
Omitted] |
45 |
|
SECTION
5.10. |
Conduct
of Business |
45 |
|
SECTION
5.11. |
[Intentionally
Omitted] |
45 |
|
SECTION
5.12. |
Sale
of Assets of the BRCOM Group |
45 |
|
SECTION
5.13. |
Fall
Away Event |
46 |
|
ARTICLE
6
SUCCESSOR
COMPANY | ||
|
SECTION
6.01. |
Merger,
Consolidation, or Sales of Assets of the Company |
48 |
|
SECTION
6.02. |
Successor
Company Substituted |
48 |
-ii-
Page
|
ARTICLE
7
EVENTS
OF DEFAULT; REMEDIES SECTION | ||
|
SECTION
7.01. |
Events
of Default |
49 |
|
SECTION
7.02. |
Acceleration |
50 |
|
SECTION
7.03. |
Other
Remedies |
51 |
|
SECTION
7.04. |
Waiver
of Past Defaults |
51 |
|
SECTION
7.05. |
Control
by Majority |
51 |
|
SECTION
7.06. |
Limitation
on Suits |
51 |
|
SECTION
7.07. |
Rights
of Holders To Receive Payment |
52 |
|
SECTION
7.08. |
Collection
Suit by Trustee |
52 |
|
SECTION
7.09. |
Trustee
May File Proofs of Claim |
52 |
|
SECTION
7.10. |
Priorities |
52 |
|
SECTION
7.11. |
Undertaking
for Costs |
53 |
|
ARTICLE
8
TRUSTEE | ||
|
SECTION
8.01. |
Duties
of Trustee |
53 |
|
SECTION
8.02. |
Rights
of Trustee |
54 |
|
SECTION
8.03. |
Individual
Rights of Trustee |
56 |
|
SECTION
8.04. |
Trustee’s
Disclaimer |
56 |
|
SECTION
8.05. |
Notice
of Defaults |
56 |
|
SECTION
8.06. |
Reports
by Trustee to Holders |
56 |
|
SECTION
8.07. |
Compensation
and Indemnity |
56 |
|
SECTION
8.08. |
Replacement
of Trustee |
57 |
|
SECTION
8.09. |
Successor
Trustee by Xxxxxx |
58 |
|
SECTION
8.10. |
Eligibility;
Disqualification |
59 |
|
SECTION
8.11. |
Preferential
Collection of Claims Against the Company |
59 |
|
SECTION
8.12. |
Appointment
of Co Trustee |
59 |
|
ARTICLE
9
DISCHARGE
OF INDENTURE; DEFEASANCE SECTION | ||
|
SECTION
9.01. |
Discharge
of Liability on Notes; Defeasance |
60 |
|
SECTION
9.02. |
Conditions
to Defeasance |
61 |
|
SECTION
9.03. |
Application
of Trust Money |
62 |
|
SECTION
9.04. |
Repayment
to the Company |
62 |
|
SECTION
9.05. |
Indemnity
for Government Obligations |
62 |
|
SECTION
9.06. |
Reinstatement |
62 |
-iii-
Page
|
ARTICLE
10
GUARANTEES | |||
|
SECTION
10.01. |
Guarantees |
63 | |
|
SECTION
10.02. |
Limitation
on Liability |
65 | |
|
SECTION
10.03. |
Successors
and Assigns |
65 | |
|
SECTION
10.04. |
Execution
of Supplemental Guarantee for Future Guarantors |
65 | |
|
SECTION
10.05. |
Non
Impairment |
66 | |
|
SECTION
10.06. |
Endorsement
of Guarantees |
66 | |
|
ARTICLE
11
AMENDMENTS | |||
|
SECTION
11.01. |
Without
Consent of Holders |
66 | |
|
SECTION
11.02. |
With
Consent of Holders |
67 | |
|
SECTION
11.03. |
Compliance
with Trust Indenture Act |
68 | |
|
SECTION
11.04. |
Revocation
and Effect of Consents and Waivers |
68 | |
|
SECTION
11.05. |
Notation
on or Exchange of Notes |
68 | |
|
SECTION
11.06. |
Trustee
To Sign Amendments |
68 | |
|
ARTICLE
12
[INTENTIONALLY
OMITTED] | |||
|
ARTICLE
13
MISCELLANEOUS | |||
|
SECTION
13.01. |
Trust
Indenture Act Controls |
69 | |
|
SECTION
13.02. |
Notices |
69 | |
|
SECTION
13.03. |
Communication
by Holders with Other Holders |
70 | |
|
SECTION
13.04. |
Certificate
and Opinion as to Conditions Precedent |
70 | |
|
SECTION
13.05. |
Statements
Required in Certificate or Opinion |
70 | |
|
SECTION
13.06. |
When
Notes Disregarded |
70 | |
|
SECTION
13.07. |
Rules
by Trustee, Paying Agent and Registrar |
71 | |
|
SECTION
13.08. |
Legal
Holidays |
71 | |
|
SECTION
13.09. |
GOVERNING
LAW |
71 | |
|
SECTION
13.10. |
No
Recourse Against Others |
71 | |
|
SECTION
13.11. |
Successors |
71 | |
|
SECTION
13.12. |
Multiple
Originals; Counterparts |
71 | |
|
SECTION
13.13. |
Table
of Contents; Headings |
71 | |
-iv-
Page
|
SECTION
13.14. |
Incorporation |
71 | |
|
SECTION
13.15. |
Intent
To Limit Interest to Maximum |
72 | |
|
SIGNATURES |
S-1 | ||
|
RULE
144A/REGULATION S APPENDIX |
APP-1 | ||
|
EXHIBITS |
|||
|
Exhibit
A. |
Form
of Initial Note |
A-1 | |
|
Exhibit
B. |
Form
of Exchange Note or Private Exchange Note |
B-1 | |
|
Exhibit
C. |
Form
of Supplemental Guarantee |
C-1 | |
|
Exhibit
D. |
Form
of Notation of Guarantee |
D-1 | |
-v-
INDENTURE
(this “Indenture”) dated as of February 16, 2005, by and among CINCINNATI
BELL INC., an Ohio corporation (f/k/a Broadwing Inc.) (the “Company”), the
Guarantors (as hereinafter defined) listed on the signature pages hereof as
Guarantors, and The Bank of New York, a New York banking corporation,
as trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of the Company’s Initial Notes, Exchange
Notes and Private Exchange Notes.
ARTICLE
1
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Definitions. As used
herein, the following terms shall have the meanings specified herein unless the
context otherwise requires:
“Accredited
Investor” means
any Person that is an “accredited investor” within the meaning of Rule 501(a)
under the Securities Act.
“Acquired
Indebtedness” 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 becomes a
Restricted Subsidiary of such specified Person, including, without limitation,
Indebtedness Incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person at the time such asset is acquired by such
specified Person.
“Additional
Interest” has the
meaning given in the Registration Rights Agreement.
“Additional
Notes” means,
subject to compliance with Sections 2.02 and 5.04 hereof, an unlimited
principal amount of 7% Senior Notes due 2015 issued from time to time after the
Closing Date under the terms of this Indenture (other than pursuant to Section
2.06, 2.07, 2.09 or 3.06 of this Indenture and other than Exchange or Private
Exchange Notes, issued pursuant to a Registered Exchange Offer for other Notes
outstanding under this Indenture).
“Affiliate” means,
with respect to any specified Person, any other Person directly or indirectly
controlling or 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 specified Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,
however, that,
for purposes of Section 5.06 only, in the case of the Company or any of its
Subsidiaries, beneficial ownership of 10% or more of the Voting Stock in the
Company or such Subsidiary, as the case may be,
shall be
deemed to be control; provided,
further, that
for purposes of Section 5.06, Cingular shall not be deemed to control CBW
or its Subsidiaries solely by virtue of its ownership of more than 10% of the
Voting Stock of CBW unless and until such time as Cingular shall own more than
110% of the percentage of Voting Stock of CBW that it owns as of the Closing
Date. Notwithstanding the foregoing, in no event will any Holder, any lender
under the Credit Agreement, any holder of the 7 1/4% Senior Notes, the
7 1/4% Notes, the 8 3/8% Notes or the 16% Notes or any of their
respective Affiliates be deemed to be an Affiliate of the Company or any of its
Subsidiaries solely by virtue of purchasing or holding any such securities or
being such a lender.
“Affiliate
Transaction” is
defined in Section 5.06.
“Agent” means
any Registrar, Paying Agent, or agent for service or notices and demands.
“Appendix” is
defined in Section 2.01.
“Applicable
Law” means
all laws, statutes, rules, regulations and orders of, and legally binding
interpretations by, any Governmental Authority and judgments, decrees,
injunctions, writs, permits, orders or like governmental action of any
Governmental Authority applicable to the Company or any of its Subsidiaries or
any of their properties, assets or operations, excluding Environmental
Laws.
“Applicable
Premium” means,
with respect to a Note at any date of redemption, the greater of (i) 1.0% of the
principal amount of such Note and (ii) any excess of (A) the present value
(discounted semi-annually) at such date of redemption of (1) the redemption
price of such Note at February 15, 2010, as set forth in the forms of
Notes, attached hereto as Exhibits A and B, plus (2) all remaining required
interest payments due on such Note through February 15, 2010 (excluding
accrued but unpaid interest to the date of redemption), computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over
(B) the principal amount of such Note.
“Asset
Disposition” means
the disposition by the Company or any Restricted Subsidiary of the Company
whether by sale, issuance, lease (as lessor (other than under operating
leases)), transfer, loss, damage, destruction, condemnation or other transaction
(including any merger or consolidation) or series of related transactions of any
of the following: (a) any of the Capital Stock of any of the Company’s
Restricted Subsidiaries, (b) all or substantially all of the assets of the
Company or any of its Restricted Subsidiaries (it being understood and agreed
that the disposition of the BRCOM Group or any assets of the BRCOM Group does
not constitute a disposition of all or substantially all of the assets of the
Company or any of its Restricted Subsidiaries) or (c) any other assets of the
Company or any of its Restricted Subsidiaries. Notwithstanding the foregoing,
“Asset Disposition” shall be deemed not to include (i) a transfer of assets by
the Company to a Restricted Subsidiary of the Company, or by a Restricted
Subsidiary of the Company to the Company or to another Restricted Subsidiary of
the Company, (ii) an issuance of Capital Stock by a Subsidiary of the Company to
the Company or to a Restricted Subsidiary of the Company, (iii) a Restricted
Payment that is permitted by the provisions of Section 5.02, (iv) a
Permitted Investment, (v) any conversion of Cash Equivalents into cash or any
other form of Cash Equivalents, (vi) any foreclosure on assets, (vii) sales or
dispositions of past due accounts receivable or notes receivable in the Ordinary
Course of Business, (viii) transactions per-
-2-
mitted
under Article 6 hereof, (ix) grants of credits and allowances in the
Ordinary Course of Business, (x) operating leases or the sublease of real or
personal property or licenses of intellectual property, in each case, on
commercially reasonable terms entered into in the Ordinary Course of Business,
(xi) trade-ins or exchanges of equipment or other fixed assets, (xii) the sale
and leaseback of any assets within 180 days of the acquisition thereof, (xiii)
sales of damaged, worn-out or obsolete equipment or assets that, in the
Company’s reasonable judgment, are no longer either used or useful in the
business of the Company or its Subsidiaries, (xiv) dispositions of inventory in
the Ordinary Course of Business, (xv) the disposition of cash or investment
securities in the ordinary course of management of the investment portfolio of
the Company and its applicable Subsidiaries, (xvi) sales of assets with a fair
market value of less than $500,000, or (xvii) sales of other assets with a fair
market value not to exceed $5,000,000 in the aggregate in any fiscal
year.
“Asset
Sale Offer” is
defined in Section 4.10(a).
“Attributable
Debt” in
respect of a Sale and Leaseback Transaction means, at the time of determination,
the present value (discounted at the implicit rate of interest borne by the
Notes including any pay-in-kind interest and amortization discount) determined
in accordance with GAAP of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended or may,
at the option of the lessor, be extended).
“Bankruptcy
Law” means
Title 11 of the United States Code or any similar federal or state bankruptcy,
insolvency, reorganization or other law for the relief of debtors.
“BCSI” means
BCSI Inc. (f/k/a Broadwing Communications Services Inc.), a Subsidiary of
BRCOM.
“Board” or
“Board
of Directors” means,
as to any Person, the board of directors, the board of advisors or other similar
governing body of such Person.
“BRCOM” means
BRCOM Inc. (f/k/a Broadwing Communications Inc.), a Delaware
corporation.
“BRCOM
Group” means
BRCOM and its Subsidiaries.
“Business
Day” means
any day which is not a Legal Holiday.
“Capital
Expenditures” means,
for any period and with respect to any Person, the aggregate of all expenditures
by such Person and its Subsidiaries for the acquisition or leasing of fixed or
capital assets or additions to fixed or capital assets (including replacements,
capitalized repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.
“Capital
Stock” of any
Person means any and all shares, interests, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities including those
convertible into such equity.
-3-
“Capitalized
Lease Obligation” means,
at the time any determination thereof is to be made, an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease.
“Cash
Equivalents” means
(i) marketable direct obligations issued or unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition thereof; (ii) commercial paper maturing no more
than one year from the date of acquisition and issued by a corporation organized
under the laws of the United States that has a rating of at least A-1 from
S&P or at least P-1 from Xxxxx’x; (iii) time deposits maturing no more than
thirty (30) days from the date of creation, certificates of deposit, money
market deposits or bankers’ acceptances maturing within one year from the date
of acquisition thereof issued by, or overnight reverse repurchase agreements
from, any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having combined
capital, surplus and undivided profits of not less than $250,000,000; (iv)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a
bank meeting the qualifications described in clause (iii) above; (v)
deposits or investments in mutual or similar funds offered or sponsored by
brokerage or other companies having membership in the Securities Investor
Protection Corporation and having combined capital and surplus of not less than
$250,000,000; and (vi) other money market accounts or mutual funds which invest
primarily in the securities described above.
“CBW” means
Cincinnati Bell Wireless LLC, an Ohio limited liability company.
“CBW
Co.” means
Cincinnati Bell Wireless Company, an Ohio corporation.
“Centralized
Cash Management System” means
the cash management system referred to in Section 5.02(f)(ix) of the Credit
Agreement as in effect on October 31, 2003 and described in Schedule
5.01(r) thereof.
“Change
of Control” means
the occurrence of any of the following: (a) the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or more related transactions, of all or substantially all of the
properties and assets of the Company and its Subsidiaries, taken as a whole, to
any Person unless: (x) pursuant to such transaction such assets are changed into
or exchanged for, in addition to any other consideration, securities of such
Person that represent immediately after such transaction at least a majority of
the aggregate voting power of the Voting Stock of such Person and (y) no
“person” (as such term is used in Section 13(d)(3) of the Exchange Act) or
“group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) is
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that such person or group shall be deemed to have “beneficial
ownership” of all shares that any such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 35% of the total voting power of the
Voting Stock of such Person; (b) the adoption of a plan relating to the
liquidation or dissolution of the Company; (c) any “person” (as such term is
used
-4-
in
Section 13(d)(3) of the Exchange Act) or “group” (within the meaning of
Rules 13d-3 and 13d-5 under the Exchange Act) is or becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such
person or group shall be deemed to have “beneficial ownership” of all shares
that any such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock of
the Company; (d) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors of
the Company or whose nomination for election by the shareholders of the Company
was approved by a majority vote of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office; (e) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company and the
securities of the Company that are outstanding immediately prior to such
transaction and which represent 100% of the aggregate voting power of the Voting
Stock of the Company are changed into or exchanged for cash, securities or
property, unless: (x) pursuant to such transaction such securities are changed
into or exchanged for, in addition to any other consideration, securities of the
surviving Person that represent immediately after such transaction, at least a
majority of the aggregate voting power of the Voting Stock of the surviving
Person and (y) no “person” (as such term is used in Section 13(d)(3) of the
Exchange Act) or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) is the beneficial owner (as defined in Rules 13d- 3 and 13d-5
under the Exchange Act, except that such person or group shall be deemed to have
“beneficial ownership” of all shares that any such person or group has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of such surviving Person or transferee; or (f) any
“change of control” as defined in any Subordinated Indebtedness of the Company
or the Guarantors to the extent not waived by holders thereof.
“Change
of Control Offer” is
defined in Section 4.09(b).
“Change
of Control Payment” is
defined in Section 4.09(a).
“Change
of Control Payment Date” is
defined in Section 4.09(b)(iii).
“Cingular” means
Cingular Wireless LLC and its Affiliates.
“Closing
Date” means
the date of this Indenture.
“Code” means
the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the Closing Date such
Commission is not existing and performing the duties now assigned to it under
the Exchange Act, the body performing such duties at such time.
-5-
“Company” means
the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture
securities.
“Consolidated” or
“consolidated”
(including the correlative term “consolidating”) or on a “consolidated basis,”
when used with reference to any financial term in this Indenture (but not when
used with respect to any tax return or tax liability), means the consolidation
for two or more Persons of the amounts signified by such term for all such
Persons, with intercompany items eliminated in accordance with
GAAP.
“Consolidated
Adjusted Debt” means
the Indebtedness of the Company and its Restricted Subsidiaries (exclusive of
Indebtedness of the type that could be Incurred under Section 5.04(b)(vi) or
(viii)) determined on a consolidated basis in accordance with GAAP.
“Consolidated
Adjusted Debt to EBITDA Ratio” means,
as of any date of determination, the ratio of (a) Consolidated Adjusted Debt as
of such date to (b) Consolidated EBITDA for the applicable four-quarter period
ending on the last day of the most recently ended quarter for which consolidated
financial statements of the Company and its Restricted Subsidiaries are
available.
“Consolidated
Adjusted Senior Debt to EBITDA Ratio” means,
as of any date of determination, the ratio of (a) Consolidated Adjusted Debt
excluding any Subordinated Indebtedness and Disqualified Capital Stock as of
such date to (b) Consolidated EBITDA for the applicable four-quarter period
ending on the last day of the most recently ended quarter for which consolidated
financial statements of the Company and its Restricted Subsidiaries are
available.
“Consolidated
EBITDA” means
for the applicable period of measurement, the Consolidated Net Income of the
Company and its Restricted Subsidiaries on a consolidated basis, plus, without
duplication, the following for the Company and its Restricted Subsidiaries to
the extent deducted in calculating such Consolidated Net Income: (i)
Consolidated Interest Expense for such period, plus (ii) provisions for taxes
based on income, plus (iii) total depreciation expense, plus (iv) total
amortization expense, plus (v) other non-cash items reducing Consolidated Net
Income (excluding any such non-cash item to the extent that it represents an
accrual or reserve for potential cash items in any future period or amortization
of a prepaid cash item) less other non-cash items increasing Consolidated Net
Income (excluding any such non-cash item to the extent it represents the
reversal of an accrual or reserve for potential cash item in any prior period),
plus (vi) charges taken in accordance with SFAS 142, plus (vii) all net cash
extraordinary losses less net cash extraordinary gains.
“Consolidated
Interest Expense” means
for the applicable period of measurement of the Company and its Restricted
Subsidiaries on a consolidated basis, the aggregate interest expense for such
period determined in accordance with GAAP (including all commissions, discounts,
fees and other charges in connection with standby letters of credit and similar
instruments) for the Company and its Restricted Subsidiaries on a consolidated
basis, but excluding all amortization of financing fees and other charges
incurred by the Company and its Restricted Subsidiaries in connection with the
issuance of Indebtedness.
-6-
“Consolidated
Net Income” means
for any period the net income (or loss) before provision for dividends on
Preferred Stock of the Company and its Restricted Subsidiaries on a consolidated
basis for such period determined in conformity with GAAP, but excluding, without
duplication, the following clauses (a) through (f) to the extent included in the
computations thereof: (a) the income (or loss) of any Person accrued prior to
the date it becomes a Restricted Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or that
Person’s assets are acquired by the Company or any of its Restricted
Subsidiaries; (b) the income (or loss) of any Person (other than the Company or
a Restricted Subsidiary) in which the Company or a Restricted Subsidiary has an
interest except to the extent of the amount of dividends or other distributions
actually paid to the Company or a Restricted Subsidiary (which amount shall be
included in Consolidated Net Income); (c) the income of any Restricted
Subsidiary of the Company to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary (except to the extent of the
amount of dividends or similar distributions actually lawfully paid to the
Company or a Restricted Subsidiary); (d) any after tax gains or losses
attributable to Asset Dispositions or returned surplus assets of any pension
plan; (e) (to the extent not included in clauses (a) through (d) above) (i) any
net extraordinary gains or net extraordinary losses or (ii) any net
non-recurring gains or non-recurring losses to the extent attributable to Asset
Dispositions, the exercise of options to acquire Capital Stock and the
extinguishment of Indebtedness; and (f) cumulative effect of a change in
accounting principles.
“Consolidated
Net Tangible Assets” means
the total of all the assets appearing on the consolidated balance sheet of the
Company and its Subsidiaries less the following: (1) current liabilities,
including liabilities for indebtedness maturing more than 12 months from the
date of the original creation thereof but maturing within 12 months from the
date of determination; (2) reserves for depreciation and other asset valuation
reserves; (3) intangible assets such as goodwill, trademarks, trade names,
patents, and unamortized debt discount and expense carried as an asset on said
balance sheet; and (4) appropriate adjustments on account of minority interests
of other Persons holding stock in any Subsidiary of the Company.
“Consolidated
Total Assets” means,
as at any date of determination, the aggregate amount of assets reflected on the
consolidated balance sheet of the Company and its Restricted Subsidiaries
prepared in accordance with GAAP most recently delivered to the Holders pursuant
to Section 4.02 hereof.
“Convertible
Preferred Stock” means
the 6 3/4% Cumulative Convertible Preferred Stock of the
Company.
“Corporate
Trust Office” means
the principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the dated hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and
the Company).
-7-
“Credit
Agreement” means
the Credit Agreement, dated as of February 16, 2005, by and among the
Company, certain subsidiary guarantors party thereto, the lenders party thereto
from time to time, Bank of America, N.A., as administrative agent, PNC Bank,
N.A., as swingline lender, and certain other agents, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreement or agreements may be amended
(including any amendment and restatement thereof), restated, supplemented,
replaced, restructured, waived, Refinanced or otherwise modified from time to
time, including any amendment, supplement, modification or agreement adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder or
extending the maturity of, Refinancing, replacing or otherwise restructuring all
or any portion of the Indebtedness under such agreement or any successor or
replacement agreement, and whether by the same or any other agent, lender or
group of lenders or one or more agreements, contracts, indentures or
otherwise.
“Credit
Documents” means
the Credit Agreement, any Hedge Agreement and other documents related thereto,
and all certificates, instruments, financial and other statements and other
documents and agreements made or delivered from time to time in connection
therewith and related thereto.
“Currency
Agreement” means
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Company or any Subsidiary of
the Company against fluctuations in currency values.
“Custodian” is
defined in Section 7.01.
“Debt” means
any Indebtedness of the type described in clauses
(i), (ii), (v), (vi) (to the extent applicable to clauses (i), (ii) or (v)) or
(vii) (to the extent applicable to clauses (i), (ii), (v) or (vi) (as previously
limited in scope)) of the definition thereof.
“Default” means
any event, act or condition that is, or with the giving of notice, lapse of time
or both would constitute, an Event of Default.
“Disqualified
Capital Stock” means
that portion of any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event (other than an
event which would constitute a Change of Control or Asset Disposition), matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except, in
each case, upon the occurrence of a Change of Control or Asset Disposition) on
or prior to the Stated Maturity.
“8 3/8%
Notes” means
the 8 3/8% Senior Subordinated Notes due 2014 of the Company.
“Environmental
Laws” means
all applicable foreign, federal, state or local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all
administrative orders, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters;
-8-
including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control
Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and
Recovery Act, the Toxic Substances Control Act, and the Emergency Planning and
Community Right-to-Know Act.
“Equity
Offering” means a
public or private sale for cash of Capital Stock (other than Disqualified Stock
or Preferred Stock) of the Company.
“Event
of Default” is
defined in Section 7.01.
“Excess
Proceeds” is
defined in Section 5.05(b).
“Exchange
Act” means
the Securities Exchange Act of 1934, as amended.
“Exchange
Guarantee” means
each Guarantee of the Obligations with respect to the Exchange Notes issued by a
Person.
“Exchange
Note” means
the senior debt securities to be issued by the Issuer pursuant to the
Registration Rights Agreement.
“Existing
Indebtedness” means
all Indebtedness of the Company and its Restricted Subsidiaries existing as of
the Closing Date (after giving effect to the redemption, repurchase, repayment
or prepayment of Indebtedness out of the proceeds of the Notes, but excluding
any Indebtedness outstanding under the Credit Documents).
“fair
market value” means,
with respect to any asset or property, the price which could be negotiated in an
arm’s-length transaction between a willing seller and a willing and able buyer.
Unless otherwise expressly required elsewhere herein, fair market value will be
determined in good faith and, for transactions involving an aggregate
consideration greater than $10,000,000, by resolution of the Board of Directors
of the Company, and any such determination shall be conclusive absent a manifest
error.
“Fall
Away Event” means
the Notes shall have achieved Investment Grade status and the Company shall have
delivered to the Trustee an Officers’ Certificate certifying the satisfaction of
such condition.
“fiscal
year” means a
fiscal year of the Company and its Restricted Subsidiaries ending on December 31
of any calendar year.
“Funded
Debt” means
any Debt which by its terms matures at or is extendible or renewable at the sole
option of the obligor without requiring the consent of the obligee to a date
more than twelve months after the date of the creation of such
Debt.
“GAAP” means
United States generally accepted accounting principles as of the Closing Date,
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 entities as have been approved by a significant segment
of the accounting profession.
-9-
“Governmental
Authority” means
(a) the government of the United States of America or any State or other
political subdivision thereof, (b) any government or political subdivision of
any other jurisdiction in which the Company or any of its Subsidiaries conducts
all or a part of its business, or which properly asserts jurisdiction over any
properties of the Company or any of its Subsidiaries or (c) any entity properly
exercising executive, legislative, judicial, regulatory or administrative
functions of any such government.
“Guarantee” means a
guarantee (other than by endorsement of negotiable instruments for collection or
deposit in the ordinary course of business), direct or indirect, in any manner
(including, without limitation, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness.
“Guarantor” means
any Person that has issued a Note Guarantee.
“Guaranteed
Obligations” is
defined in Section 10.01.
“Hedge
Agreements” means
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts and
other hedging agreements.
“Holder” means a
Person in whose name a Note is registered at the Registrar.
“Incur” means
create, incur, issue, assume, Guarantee or otherwise become directly or
indirectly liable, contingently or otherwise (including by operation of
law).
“Indebtedness” means,
with respect to any Person on any date of determination, without duplication:
(i) the principal of and premium (if any) in respect of indebtedness of such
Person for borrowed money; (ii) the principal of and premium (if any) in respect
of indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) all Capitalized Lease Obligations and all
Attributable Debt of such Person; (iv) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement, in each
case to the extent the purchase price is due more than six months from the date
the obligation is Incurred (but excluding trade accounts payable and other
accrued liabilities arising in the Ordinary Course of Business); (v) all
obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction; (vi) Guarantees and other
contingent obligations in respect of Indebtedness referred to in clauses (i)
through (v) above and clause (viii) below; (vii) all obligations of any
other Person of the type referred to in clauses (i) through (vi) which are
secured by any Lien on any property or asset of such Person, the amount of such
obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured; (viii) all
obligations under Currency Agreements and all Interest Swap Obligations of such
Person; and (ix) all obligations represented by Disqualified Capital Stock of
such Person.
“Indenture” is
defined in the preamble.
“Independent
Qualified Party” means
an investment banking firm, accounting firm or appraisal firm, in each case, of
national standing; provided,
however, that
such firm is not an Affiliate of the Company; and provided,
further, that
for transactions involving consideration
-10-
of
$100,000,000 or more, the term “Independent Qualified Party” shall be limited to
an investment banking firm of national standing only, unless, with respect to
any such transaction, (x) the Company delivers to the Trustee and the Required
Holders an Officers’ Certificate to the effect that no investment bank will
opine on commercially reasonable terms on such transaction and that it proposes
instead to engage an accounting firm of national standing (and stating the
identity of such accounting firm) and (y) within fifteen (15) days after the
delivery of such Officers’ Certificate the Company does not receive a written
notice from the Required Holders reasonably objecting to the Company’s proposal
set forth in the Officers’ Certificate, in which case the term “Independent
Qualified Party” for such transaction may also include such accounting
firm.
“Interest
Swap Obligations” means
the Obligations of any Person pursuant to any arrangement with any other Person,
whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments made
by such other Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include, without limitation, 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 party or of which
it is a beneficiary.
“Investment” means
(i) any direct or indirect purchase or other acquisition by the Company or any
of its Restricted Subsidiaries of any beneficial interest in, including stock,
partnership interest or other Capital Stock of, or ownership interest in, any
other Person; and (ii) any direct or indirect loan, advance or capital
contribution by the Company or any of its Restricted Subsidiaries to any other
Person, including all indebtedness and accounts receivable from that other
Person that did not arise from sales to or services provided to that other
Person in the Ordinary Course of Business. For purposes of Section 5.02:
(i) “Investment” shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary of the Company (to the extent of the
Company’s percentage ownership therein) at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary of the Company and shall
exclude the fair market value of the net assets of any Unrestricted Subsidiary
of the Company (to the extent of the Company’s percentage ownership therein) at
the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary
of the Company; and (ii) the amount of any Investment shall be the original cost
of such Investment plus the costs of all additional Investments by the Company
or any of its Restricted Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends or distributions in connection
with such Investment or any other amounts received in respect of such
Investment; provided
that no
such payment of dividends or distributions or receipt of any such other amounts
shall reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income.
“Investment
Grade” means,
with respect to the Notes, a credit rating of (i) at least “Baa3” (or the
equivalent) by Xxxxx’x and (ii) at least “BBB-” (or the equivalent) by S&P;
provided
that
neither of such entities shall have announced a negative or similar outlook or
announced or informed the Company that it is reviewing the rating of the Notes
for possible downgrading of the rating thereof.
-11-
“Legal
Holiday” means a
Saturday, a Sunday or a day on which banking institutions in New York or
Ohio or at a place of payment are authorized by law, regulation or executive
order to remain closed. If any payment date in respect of the Notes 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 for the
intervening period.
“Leverage
Test” is
defined in Section 5.04(a).
“Lien” means
any lien, mortgage, pledge, security interest, charge, encumbrance or
governmental levy or assessment of any kind, whether voluntary or involuntary
(including any conditional sale or other title retention agreement and any lease
in the nature thereof).
“maturity”, when
used with respect to any Note, means the date on which the principal of such
Note becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise (including in connection with any offer to purchase that this
Indenture requires the Company to make).
“Moody’s” means
Xxxxx’x Investors Service, Inc.
“Net
Cash Proceeds”, with
respect to any issuance or sale of Capital Stock, means the cash proceeds of
such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’
or placement agents’ fees, discounts or commissions and brokerage, consultant
and other fees actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
“Net
Proceeds” means
cash proceeds actually received by the Company or any of its Restricted
Subsidiaries from any Asset Disposition (including insurance proceeds, awards of
condemnation, and payments under notes or other debt securities received in
connection with any Asset Disposition), net of (a) the costs of such sale,
issuance, lease, transfer or other disposition (including all legal, title and
recording tax expenses, commissions and other fees and expenses incurred and all
taxes required to be paid or accrued as a liability under GAAP as a consequence
of such sale, lease or transfer), (b) amounts applied to repayment of
Indebtedness (other than revolving credit Indebtedness under the Credit
Agreement, without a corresponding reduction in the revolving credit commitment)
secured by a Lien on the asset or property disposed of, (c) if such Asset
Disposition involves the sale of a discrete business or product line, any
accrued liabilities of such business or product line required to be paid or
retained by the Company or any of its Restricted Subsidiaries as part of such
disposition, (d) appropriate amounts to be provided by the Company or a
Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with an Asset Disposition and retained
by the Company or such Restricted Subsidiary, as the case may be, after such
Asset Disposition, including, without limitation, pension and benefit
liabilities, liabilities related to environmental matters or liabilities under
any indemnification obligations associated with such Asset Disposition and (e)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition,
but only to the extent required by constituent documents of such Subsidiary or
such joint venture.
-12-
“Note
Guarantee” means
each Guarantee of the Obligations with respect to the Notes issued by a Person
pursuant to the terms of this Indenture.
“Notice
of Default” is
defined in Section 8.05.
“Obligations” means
all obligations for principal, premium (if any), interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
“Offer
Amount” is
defined in Section 4.10(c).
“Offer
Period” is
defined in Section 4.10(a).
“Officers’
Certificate” of the
Company means a certificate signed on behalf of the Company by two Persons, one
of which shall be any of the following: the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Chief Accounting Officer or the Treasurer (or any such
other officer that performs similar duties) of the Company, and the other one
shall be any of the following: the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, any Vice President, the
Chief Financial Officer, the Chief Accounting Officer, the Treasurer, the
Assistant Treasurer, Controller, the Secretary or an Assistant Secretary (or any
such other officer that performs similar duties) of the Company. One of the
officers signing an Officers’ Certificate given pursuant to Section 4.06
shall be the principal executive, financial or accounting officer or treasurer
of the Company.
“Opinion
of Counsel” means a
written opinion from legal counsel who is acceptable to the Trustee. The counsel
may be an employee of or counsel to the Company or a Guarantor.
“Ordinary
Course of Business” means,
in respect of any transaction involving the Company or any Restricted Subsidiary
of the Company, the ordinary course of such Person’s business, as conducted by
any such Person in accordance with past practice and undertaken by such Person
in good faith.
“Paying
Agent” is
defined in Section 2.03(a).
“Permits” means
all licenses, permits, certificates of need, approvals and authorizations from
all Governmental Authorities required to lawfully conduct a
business.
“Permitted
Acquisition” means
the purchase by the Company or a Restricted Subsidiary of the Company of all or
substantially all of the assets of a Person whose primary business is the same,
related, ancillary or complementary to the business in which the Company and its
Restricted Subsidiaries were engaged on the Closing Date, or any Investment by
the Company or any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person and each Subsidiary of such Person
becomes a Restricted Subsidiary of the Company whose primary business is the
same, related, ancillary or complementary to the business in which the Company
and its Restricted Subsidiaries were engaged on the Closing Date or (ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys sub-
-13-
stantially
all of its assets to, or is liquidated into, a Restricted Subsidiary of the
Company and whose primary business is the same, related, ancillary or
complementary to the business in which the Company and its Subsidiaries were
engaged on the Closing Date.
“Permitted
Adjustments” means,
for the purpose of calculating the Leverage Test, pro forma adjustments arising
out of events (including cost savings resulting from head count reduction,
closure of facilities and similar restructuring charges) which are directly
attributable to a specific transaction, are factually supportable and are
expected to have a continuing impact, which would be permitted by
Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Commission; provided
that such
adjustments are set forth in an Officers’ Certificate signed by the Company’s
chief financial officer and another officer which states (i) the amount of such
adjustment or adjustments, (ii) that such adjustment or adjustments are based on
the reasonable good faith beliefs of the officers executing such Officers’
Certificate at the time of such execution and (iii) that any related Incurrence
of Indebtedness is permitted pursuant to this Indenture.
“Permitted
Asset Swap” means
any transfer of properties or assets by the Company or any of its Restricted
Subsidiaries in which the consideration received by the transferor consists of
like properties or assets to be used in the business of the Company or its
Restricted Subsidiaries in the same or similar manner as such transferred
properties or assets; provided
that (i)
the fair market value (determined in good faith by the Board of Directors of the
Company) of properties or assets received by the Company or any of its
Restricted Subsidiaries in connection with such Permitted Asset Swap is at least
equal to the fair market value (determined in good faith by the Board of
Directors of the Company) of properties or assets transferred by the Company or
such Restricted Subsidiary in connection with such Permitted Asset Swap and (ii)
the aggregate fair market value of assets transferred by the Company in
connection with all Permitted Asset Swaps after the Closing Date does not exceed
10% of Consolidated Total Assets.
“Permitted
Investments”
means:
(i) (A) any
Investment in (including, without limitation, loans and advances to) the Company
or a Restricted Subsidiary of the Company whose primary business is the same,
related, ancillary or complementary to the business in which the Company and its
Subsidiaries were engaged in on the date of such Investment and (B) any
acquisition by the Company or a Restricted Subsidiary of the Company of
beneficial interest in a Restricted Subsidiary of the Company from another
Restricted Subsidiary of the Company or the Company;
(ii) any
Investment in Cash Equivalents or the Notes;
(iii) any
Investment related to or arising out of a Permitted Acquisition;
(iv) any
Investment which results from the receipt of non-cash consideration from an
asset sale made pursuant to and in compliance with the provisions of
Section 5.05 or from any sale or other disposition of assets not
constituting an Asset Disposition;
-14-
(v) payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the Ordinary Course of Business;
(vi) receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
Ordinary Course of Business and payable or dischargeable in accordance with
customary trade terms; provided,
however, that
such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the
circumstances;
(vii) loans and
advances to employees made in the Ordinary Course of Business not to exceed
$2,000,000 in the aggregate at any time outstanding; provided,
however, for
purposes of this definition, “advances” will not restrict advances for travel,
moving or relocation expenses to employees advanced and repaid in the Ordinary
Course of Business;
(viii) loans and
advances not to exceed $2,000,000 at any time outstanding to employees of the
Company or its Subsidiaries for the purpose of funding the purchase of Capital
Stock of the Company by such employees;
(ix) any
Investments received as part of the settlement of litigation or in satisfaction
of extensions of credit to any Person otherwise permitted under this Indenture
pursuant to the reorganization, bankruptcy or liquidation of such Person or a
good faith settlement of debts by said Person;
(x) any
Investment existing on the Closing Date, any Investment received as a
distribution in respect of such existing Investment and any Investment received
in exchange for such existing Investment; provided that, in
the case of an exchange, the fair market value (as determined in good faith by
the Board of Directors of the Company) of the Investment being exchanged is at
least equal to the fair market value (as determined in good faith by the Board
of Directors of the Company) of the Investment for which such Investment is
being exchanged;
(xi) Investments
of a Person or any of its Subsidiaries existing at the time such Person becomes
a Restricted Subsidiary of the Company or at the time such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either
case in compliance with this Indenture; provided such
Investments were not made by such Person in connection with or in anticipation
or contemplation of such Person becoming a Restricted Subsidiary of the Company
or such merger or consolidation;
(xii) Investments
in stock, obligations or securities received in settlement of debts created in
the Ordinary Course of Business or in satisfaction of judgments;
(xiii) Investments
by the Company or any Restricted Subsidiary pursuant to an Interest Rate Swap
Obligation or a Currency Agreement permitted by Section 5.04(b)(vi) or
(viii);
-15-
(xiv) Investments
consisting of debits and credits between BRFS LLC and the Company, its
Restricted Subsidiaries and its Unrestricted Subsidiaries pursuant to the
Centralized Cash Management System;
(xv) Investments
consisting of loans, advances and payables due from suppliers or customers made
by the Company or its Restricted Subsidiaries in the Ordinary Course of
Business;
(xvi) Investments
that may be deemed to arise from the cashless exercise by employees of the
Company of rights, options or warrants to purchase Capital Stock of the
Company;
(xvii) Investments,
the consideration paid for which consists solely of Capital Stock (other than
Disqualified Capital Stock) of the Company;
(xviii) Investments
in an aggregate amount not in excess of 5% of the Consolidated Total Assets for
any Investments valued as of the date such Investment is made, including,
without limitation, joint ventures; and
(xix) Investments
the consideration for which was paid by a Person other than the Company or any
of its Restricted Subsidiaries, without recourse to the Company or its
Restricted Subsidiaries.
“Permitted
Liens”
means:
(i) Liens to
secure the performance of statutory obligations, surety or appeal bonds, letters
of credit or other obligations of a like nature incurred in the Ordinary Course
of Business;
(ii) Liens for
taxes, assessments and governmental charges, levies or claims (x) that are not
yet due and payable or (y) that are due and payable and are being contested in
good faith by appropriate proceedings so long as such proceedings stay
enforcement of such Liens;
(iii) any Lien
arising out of a judgment or award not constituting an Event of
Default;
(iv) statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen, workmen,
repairmen and other similar liens imposed by law, which are incurred in the
Ordinary Course of Business for sums not more than thirty (30) days delinquent
or which are being contested in good faith by appropriate proceedings so long as
such contest stays enforcement of such Liens;
(v) survey
exceptions, easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material adverse respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
-16-
(vi) any
interest or title of a lessor under any Capitalized Lease Obligation;
provided
that such
Liens do not extend to any property or asset which is not leased property
subject to such Capitalized Lease Obligation;
(vii) Liens
securing Indebtedness permitted pursuant to Section 5.04(b)(iii);
provided,
however, that in
the case of purchase money Indebtedness (a) such Indebtedness shall not exceed
the cost of the property or assets so acquired, constructed, repaired, added to
or improved and shall not be secured by any other property or assets of the
Company or any Restricted Subsidiary of the Company and (b) the Lien securing
such Indebtedness shall be created within 180 days after the date of such
acquisition or completion of construction, repair, improvement, addition or
commencement of full operation of the property subject to the Lien or, in the
case of a Refinancing of any purchase money Indebtedness, within 180 days of
such Refinancing;
(viii) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(ix) Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;
(x) Liens in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(xi) Liens
arising from filing Uniform Commercial Code financing statements regarding
leases;
(xii) Liens in
existence on the Closing Date;
(xiii) Liens on
property or shares of Capital Stock of another Person at the time such other
Person becomes a Subsidiary of such Person; provided,
however, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming a Subsidiary;
(xiv) leases,
subleases, licenses and sublicenses of the type referred to in clause (x)
in the second sentence of the definition of “Asset Disposition” granted to third
parties in the Ordinary Course of Business;
(xv) banker’s
liens and rights of offset of the holders of Indebtedness of the Company or any
Restricted Subsidiary on monies deposited by the Company or any Restricted
Subsidiary with such holders of Indebtedness in the Ordinary Course of Business
of the Company or any such Restricted Subsidiary;
(xvi) Liens
securing obligations under Interest Swap Obligations or Currency Agreements so
long as such obligations relate to Indebtedness that is, and is permitted
-17-
under
this Indenture, to be secured by a Lien on the same property securing such
obligations;
(xvii) Liens to
secure any Refinancing (or successive Refinancings) as a whole, or in part, of
any Indebtedness secured by any Lien referred to in the foregoing clauses (xii)
and (xiii); provided,
however, that
(i) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements to or on such property) and (ii)
the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (1) the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Xxxxx described under
clauses (xii) and (xiii) at the time the original Lien became a Permitted Lien
under this Indenture and (2) an amount necessary to pay any fees and expenses,
including premiums related to such Refinancings;
(xviii) pledges
or deposits to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations;
(xix) Liens on
property at the time such Person or any of its Subsidiaries acquires the
property, including any acquisition by means of a merger or consolidation with
or into such Person or a Subsidiary of such Person; provided,
however, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such acquisition; provided,
further,
however, that
the Liens may not extend to any other property owned by such Person or any of
its Subsidiaries;
(xx) other
Liens that do not, in the aggregate, secure obligations in an aggregate amount
in excess of 5% of the Consolidated Total Assets valued as of the date of the
Incurrence of any such obligation;
and
(xxi) Liens
securing Indebtedness Incurred pursuant to
Section 5.04(b)(xiv).
“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 Refinance, other
Indebtedness of any such Person; provided that (i)
the principal amount of such Permitted Refinancing Indebtedness does not exceed
the principal amount plus accrued interest and premium, if any, of the
Indebtedness so exchanged or Refinanced (plus fees); (ii) such Permitted
Refinancing Indebtedness has a final maturity date on or 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
exchanged or Refinanced; (iii) if the Indebtedness being exchanged or Refinanced
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at least
as favorable to the Holders as those contained in the documentation governing
the Indebtedness being exchanged or Refinanced; and (iv) such Permitted
Refinancing Indebtedness is Incurred by the Company or the Person who is the
obligor on the Indebtedness being exchanged or Refinanced. “Permitted
Refinancing Indebtedness” shall not include Indebtedness Incurred to Refinance
Indebtedness originally Incurred in violation of this Indenture or pursuant to
Section 5.04(b)(iii), (v), (vi), (vii), (viii), (x) or (xi).
-18-
“Person” means
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
“Preferred
Stock” of any
Person means any Capital Stock of such Person that has preferential rights to
any other Capital Stock of such Person with respect to dividends or redemptions
or upon liquidation, and shall include the 6 3/4% Convertible Preferred
Stock of the Company.
“principal” of a
Note means the principal of the Note plus the premium, if any, payable on the
Note which is due or overdue or is to become due at the relevant
time.
“Principal
Property” means
any asset (including Capital Stock of a Subsidiary), whether owned at the date
of the Fall Away Event or thereafter acquired, having a gross book value
(without deductions of any applicable depreciation reserves) on the date as of
which the determination is being made of more than 2.5% of Consolidated Net
Tangible Assets.
“Purchase
Agreement” means
the Purchase Agreement dated as of February 2, 2005 by and among the
Company, the Guarantors and Banc of America Securities LLC, as representative of
the Purchasers.
“Purchase
Date” is
defined in Section 4.10(c).
“Redemption
Date,” when
used with respect to any Note to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture and the Notes.
“Redemption
Price,” when
used with respect to any Note to be redeemed, means the price at which such Note
is to be redeemed pursuant to this Indenture and the Notes.
“Refinance” means,
in respect of any security or Indebtedness, to refinance, extend, renew, refund,
repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness
in exchange or replacement for, such security or Indebtedness in whole or in
part. “Refinanced” and
“Refinancing” shall
have correlative meanings.
“Registrar” is
defined in Section 2.03(a).
“Required
Holders” means
Holders holding more than 50% of the then outstanding aggregate principal amount
of the Notes (exclusive of Notes then owned directly or indirectly by the
Company or any of its Subsidiaries or Affiliates).
“Responsible
Officer” means
the chief executive officer, the president, the chief financial officer, the
principal accounting officer or the treasurer (or the equivalent of any of the
foregoing) of the Company or any of its Subsidiaries or any other officer,
partner or member (or person performing similar functions) of the Company or any
of its Subsidiaries responsible for overseeing the administration of, or
reviewing compliance with, all or any portion of this Indenture.
-19-
“Restricted
Investment” means
an Investment other than a Permitted Investment.
“Restricted
Payments” is
defined in Section 5.02(a)(iv).
“Restricted
Subsidiary” of any
Person means any Subsidiary of such Person which at the time of determination is
not an Unrestricted Subsidiary.
“S&P” means
Standard & Poor’s Ratings Services, a division of XxXxxx-Xxxx Companies,
Inc.
“Sale
and Leaseback Transaction” means
any direct or indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to the Company or a Restricted Subsidiary
of any property, whether owned by the Company or any Restricted Subsidiary at
the Closing Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or any
other Person from whom funds have been or are to be advanced by such Person on
the security of such property.
“Secured
Indebtedness” means
any Indebtedness secured by a Lien.
“series” means
any series of Notes outstanding under this Indenture.
“7 1/4%
Notes” means
the 7 1/4% Senior Notes due 2013 of the Company.
“7 1/4%
Senior Notes” means
those certain 7 1/4% Senior Notes due 2023 of the Company issued pursuant
to an indenture dated as of July 1, 1993 in the aggregate principal amount of
$50,000,000, and any such notes issued in exchange or replacement
therefor.
“Significant
Sale and Leaseback Transaction” means
any arrangement with any Person providing for the leasing to the Company or any
Subsidiary of the Company of any Principal Property (except for temporary leases
for a term, including any renewal thereof, of not more than three years and
except for leases between the Company and a Subsidiary of the Company or between
Subsidiaries of the Company), which Principal Property has been or is to be sold
or transferred by the Company or such Subsidiary of the Company to such
Person.
“Significant
Subsidiary” means
any Restricted Subsidiary that is or would be a “significant subsidiary” of the
Company within the meaning of Rule 1-02 of Regulation S-X promulgated by the
Commission.
“16%
Notes” means
those certain 16% Senior Subordinated Discount Notes due 2009 of the
Company.
“16%
Notes Indenture” means
the indenture relating to the 16% Notes dated as of March 26, 2003, among the
Company, the Guarantors party thereto, and The Bank of New York as
Trustee.
“Spectrum
Assets” means
the E-Block spectrum licenses granted by the Federal Communications Commission
or any spectrum license owned by CBW Co. for which the E-Block may be
exchanged.
-20-
“Stated
Maturity” when
used with respect to any Note or any installment of interest thereon, means the
date specified in this Indenture or such Note as the scheduled fixed date on
which the principal of such Note or such installment of interest is due and
payable and shall not include any contingent obligation to repay, redeem or
repurchase any such interest or principal prior to the date originally scheduled
for payment thereof.
“Subordinated
Indebtedness” of the
Company means (1) the 16% Notes and (2) any Indebtedness of the Company
permitted under this Indenture which is expressly subordinated to and junior to
the payment and performance of the Notes. “Subordinated Indebtedness” of a
Guarantor has a correlative meaning.
“Subsidiary” means,
with respect to any Person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(A) the sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (B) the only general partners of which
are such Person or of one or more Subsidiaries of such Person (or any
combination thereof). Any Person becoming a Subsidiary of the Company after the
Closing Date shall be deemed to have Incurred all of its outstanding
Indebtedness on the date it becomes a Subsidiary.
“Successor
Company” is
defined in Section 6.01(a).
“TIA” means
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended
from time to time.
“Treasury
Rate” means,
with respect to a Redemption Date, the yield to maturity at the time of
computation 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 such Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar market data )) most nearly equal to the
period from such Redemption Date to February 15, 2010; provided,
however, that if
the period from such Redemption Date to February 15, 2010 is not equal to the
constant maturity of the United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such redemption date to February 15,
2010 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.
“Trust
Officer” means,
when used with respect to the Trustee, any vice president (whether or not
designated by a number or a word or words added before or after the title “vice
president”), any assistant vice president, any assistant secretary, any
assistant treasurer, trust officer or any other officer of the Trustee in its
corporate trust department 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
re-
-21-
xxxxxx
because of his or her knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
“Trustee” means
the party named as such in this Indenture until a successor replaces it and
thereafter, means the successor.
“Unrestricted
Subsidiary” means
(i) any Subsidiary of the Company that at the time of determination shall be or
continues to be designated an Unrestricted Subsidiary by the Board of Directors
of the Company in the manner provided below; and (ii) any Subsidiary of an
Unrestricted Subsidiary.
The Board
of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock of, or owns or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided
that: (i)
the Company certifies to the Holders that such designation complies with
Section 5.02; and (ii) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter, Incur
any Indebtedness pursuant to which the lender has recourse to any of the assets
of the Company or any of its Restricted Subsidiaries.
The Board
of Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided,
however, that
immediately after giving effect to such designation: (i) the Company could Incur
$1.00 of additional Indebtedness under Section 5.04(a); and (ii)
immediately before and immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing.
Any such
designation by the Board of Directors of the Company shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the resolution of such
Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing
provisions.
“U.S.
Government Obligations” means
direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and that are not callable or redeemable
at the issuer’s option.
“Value” means
with respect to a Significant Sale and Leaseback Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds from
the sale or transfer of the property leased pursuant to such Sale and Leaseback
Transaction or (2) the fair market value in the opinion of the Board of
Directors of the Company of such property at the time of entering into such Sale
and Leaseback Transaction, in either case divided first by the number of full
years of the terms of the lease and then multiplied by the number of full years
of such term remaining at the time of determination, without regard to any
renewal or extension options contained in the lease.
“Voting
Stock” of a
Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled
(without
-22-
regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof.
“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.
SECTION
1.02. Incorporation
by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
“indenture
securities” means the Initial Notes, the Additional Notes (if any) the Exchange
Notes and the Exchange Guarantees.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any other obligor on the
indenture securities.
All other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule have the meanings
assigned to them by such definitions.
SECTION
1.03. Rules
of Construction.
Unless the context otherwise requires:
(a) a term
has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or” is
not exclusive;
(d) “including”
means “including without limitation”;
(e) “to” and
“until” each mean “to but excluding”;
(f) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein);
-23-
(g) any
reference herein to any Person shall be construed to include such Person’s
successors and assigns;
(h) words in
the singular include the plural and words in the plural include the
singular;
(i) unsecured
Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(j) the
principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP; and
(k) the
principal amount of any Preferred Stock shall be (i) the maximum liquidation
value of such Preferred Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock, whichever is
greater.
ARTICLE
2
THE
NOTES
SECTION
2.01. Form
and Dating.
Provisions relating to the Initial Notes, the Exchange Notes and the Private
Exchange Notes are set forth in the Rule 144A/Regulation S Appendix attached
hereto (the “Appendix”), which is hereby incorporated in and expressly made a
part of this Indenture. The Initial Notes issued on the Closing Date, any
Additional Notes and all Exchange Notes or Private Exchange Notes issued in
exchange therefor shall be treated as a single class for all purposes under this
Indenture, including, without limitation, waivers, amendments, redemptions and
offers to purchase. The Initial Notes and the Trustee’s certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Notes or Private Exchange Notes to be issued in exchange for the
Initial Notes or otherwise pursuant to this Indenture and the Trustee’s
certificate of authentication shall be substantially in the form of
Exhibit B hereto, which is hereby incorporated in and expressly made a part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Note shall be dated
the date of its authentication. The Notes shall be issuable only in registered
form without interest coupons and only in denominations of $1,000 and multiples
thereof.
SECTION
2.02. Execution
and Authentication.
One officer shall sign the Notes for the Company by manual or facsimile
signature.
If an
officer whose signature is on a Note no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid
nevertheless.
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A Note
shall not be valid until an authorized signatory of the Trustee manually signs
the certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The
Trustee shall, upon written direction of the Company, authenticate and make
available for delivery Notes as set forth in the Appendix.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Company
to authenticate the Notes. Any such appointment shall be evidenced by an
instrument signed by a Trust Officer, a copy of which shall be furnished to the
Company. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION
2.03. Registrar
and Paying Agent.
(a) The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or
agency where Notes may be presented for payment (the “Paying Agent”). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more co-registrars and one or more additional paying
agents. The term “Paying Agent” includes any additional paying agent, and the
term “Registrar” includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Notes and (ii)
the Notes Custodian with respect to the Global Notes (as defined in the
Appendix).
(b) The
Company shall enter into an appropriate agency agreement with any Registrar or
Paying Agent not a party to this Indenture, which shall incorporate the terms of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee in writing of the
name and address of any such agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 8.07. The Company or
any of its domestically organized Restricted Subsidiaries may act as Paying
Agent or Registrar.
(c) The
Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided,
however, that no
such removal shall become effective until (i) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (i) above. The Registrar or Paying Agent may resign at any time
upon written notice to the Company and the Trustee; provided,
however, that
the Trustee may resign as Paying Agent or Registrar only if the Trustee also
resigns as Trustee in accordance with Section 8.08.
SECTION
2.04. Paying
Agent To Hold Money in Trust.
Prior to 10:00 a.m. (New York City time) each due date of the principal of and
interest on any Note, the Company
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shall
deposit with, or to an account maintained by, the Paying Agent (or if the
Company or a Subsidiary is acting as Paying Agent, segregate and hold in trust
for the benefit of the Persons entitled thereto) a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Notes and
shall promptly notify the Trustee in writing of any default by the Company in
making any such payment. If the Company or a Subsidiary of the Company acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon
complying with this Section 2.04, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
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 Holders. If the
Trustee is not the Registrar, the Company shall furnish, or cause the Registrar
to furnish, to the Trustee, in writing at least five 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 Holders.
SECTION
2.06. Transfer
and Exchange.
The Notes shall be issued in registered form and shall be transferable only upon
the surrender of a Note for registration of transfer and in compliance with the
Appendix. When a Note is presented to the Registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if its
requirements therefor are met. When Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar’s request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.06. The Company shall not
be required to make and the Registrar need not register transfers or exchanges
of Notes selected for redemption (except, in the case of Notes to be redeemed in
part, the portion thereof not to be redeemed) or any Notes for a period of 15
days before the mailing of a notice of redemption of Notes to be
redeemed.
Prior to
the due presentation for registration of transfer of any Note, the Company, the
Guarantors, the Trustee, the Paying Agent and the Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of and (subject to paragraph 2
of the Notes) interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company, the
Guarantors, the Paying Agent, the Trustee or the Registrar shall be affected by
notice to the contrary.
Any
Holder of a Global Note shall, by acceptance of such Global Note, agree that
transfers of beneficial interest in such Global Note may be effected only
through a book-entry system maintained by (a) the Holder of such Global Note (or
its agent) or (b) any Holder of a
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beneficial
interest in such Global Note, and that ownership of a beneficial interest in
such Global Note shall be required to be reflected in a book entry.
All Notes
issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION
2.07. Replacement
Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the New York Uniform Commercial Code
are met, such that the Holder (a) satisfies the Company or the Trustee within a
reasonable time after such Holder has notice of such loss, destruction or
wrongful taking and the Registrar does not register a transfer prior to
receiving such notification, (b) makes such request to the Company or the
Trustee prior to the Note being acquired by a protected purchaser as defined in
Section 8-303 of the New York Uniform Commercial Code (a “protected
purchaser”) and (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Trustee to protect the Company,
the Trustee, the Paying Agent and the Registrar from any loss that any of them
may suffer if a Note is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Note. In the event any such mutilated,
lost, destroyed or wrongfully taken Note has become or is about to become due
and payable, the Company in its discretion may pay such Note instead of issuing
a new Note in replacement thereof.
Every
replacement Note is an additional obligation of the Company.
The
provisions of this Section 2.07 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION
2.08. Outstanding
Notes.
Notes outstanding at any time are all Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section 2.08 as not outstanding. Subject to
Section 13.06, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note.
If a Note
is replaced pursuant to Section 2.07, it ceases to be outstanding unless
the Trustee and the Company receive proof satisfactory to them that the replaced
Note is held by a protected purchaser.
If the
Paying Agent segregates and holds in trust, in accordance with this Indenture,
on a Redemption Date, the Stated Maturity Date or maturity date money sufficient
to pay all principal and interest and Additional Interest, if any, payable on
that date with respect to the Notes (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying
such money to the Holders on that date pursuant to the terms of this Indenture,
then on and after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
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SECTION
2.09. Temporary
Notes.
Until Definitive Notes are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate Definitive Notes
and deliver them in exchange for temporary Notes upon surrender of such
temporary Notes at the office or agency of the Company, without charge to the
Holder.
SECTION
2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment or cancellation and shall dispose of canceled Notes
in accordance with its customary procedures or deliver canceled Notes to the
Company pursuant to written direction by a Responsible Officer. The Company may
not issue new Notes to replace Notes it has redeemed, paid or delivered to the
Trustee for cancellation. The Trustee shall not authenticate Notes in place of
canceled Notes other than pursuant to the terms of this Indenture.
SECTION
2.11. Defaulted
Interest.
If the Company defaults in a payment of interest or Additional Interest, if any,
on the Notes, the Company shall pay the defaulted interest (plus interest on
such defaulted interest to the extent lawful) in any lawful manner. The Company
may pay the defaulted interest to the Persons who are Holders on a subsequent
special record date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail or cause to be mailed to each Holder a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid.
SECTION
2.12. CUSIP
Numbers.
The Company in issuing the Notes may use Committee on Uniform Securities
Identification Procedures numbers (the “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,
however, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
SECTION
2.13. Designations.
For purposes of the 8 3/8% Indenture and the 16% Notes Indenture, the Notes
issued pursuant to this Indenture shall constitute “Designated Senior
Indebtedness.”
SECTION
2.14. Issuance
of Additional Notes.
The Company shall be entitled to issue Additional Notes under this Indenture
which shall have substantially identical terms as the Initial Notes issued on
the Closing Date, other than with respect to the date of issuance, issue price,
amount of interest payable on the first payment date applicable thereto or upon
a registration default as provided under a Registration Rights Agreement related
thereto and terms of optional redemption, if any (and, if such Additional Notes
shall be issued in the form of Exchange
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Notes,
other than with respect to transfer restrictions); provided, that such
issuance shall be made in compliance with Section 5.04.
With
respect to any Additional Notes, the Company shall set forth in a resolution of
its Board of Directors (or a duly appointed committee thereof) and in an
Officers’ Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(a) the
aggregate principal amount of Notes outstanding immediately prior to the
issuance of such Additional Notes;
(b) the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(c) the issue
price and the issue date of such Additional Notes and amount of interest payable
on the first payment date applicable thereto;
(d) whether
such Additional Notes shall be Transfer Restricted Securities and issued in the
form of Initial Notes or shall be registered securities issued in the form of
Exchange Notes, each as set forth in the Exhibits hereto; and
(e) if
applicable, that such Additional Notes shall be issuable in whole or in part in
the form of one or more Global Notes and, in such case, the respective
depositaries for such Global Notes, the form of any legend or legends which
shall be borne by such Global Notes in addition to or in lieu of those set forth
in Exhibit A hereto and any circumstances in addition to or in lieu of those set
forth in the Appendix in which any such Global Note may be exchanged in whole or
in party for Additional Notes registered, or any transfer of such Global Notes
in whole or in party may be registered, in the name or names of Persons other
than the depositary for such Global Note or a nominee thereof.
ARTICLE
3
REDEMPTION
SECTION
3.01. Notices
to Trustee.
If the Company elects to redeem Notes pursuant paragraph 6 of the Notes or is
obligated to purchase Notes pursuant to Section 4.09 or Section 4.10,
it shall notify the Trustee in writing of the Redemption Date and the principal
amount of Notes to be redeemed. The redemption provisions of paragraph 5 of the
Notes are fully incorporated herein. The Trustee may conclusively rely on an
Officers’ Certificate and the calculations given therein in making any
redemption in accordance with paragraph 5 of the Notes.
The
Company shall give each notice to the Trustee provided for in this
Section 3.01 at least 45 days before the Redemption Date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers’
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the Notes
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
fewer than 15
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days
after the date of notice to the Trustee. Any such notice may be canceled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION
3.02. Selection
of Notes To Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select the
Notes to be redeemed pro rata, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate. The Trustee shall
make the selection from outstanding Notes not previously called for redemption.
The Trustee may select for redemption portions of the principal amount of Notes
that have denominations larger than $1,000. Notes and portions of them the
Trustee selects shall be in principal amounts of $1,000 or a multiple thereof.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be redeemed.
SECTION
3.03. Notice
of Redemption.
(a) At least
30 days but not more than 60 days before a date
for redemption of Notes, the Company shall mail a notice of redemption by first
class mail to each Holder of Notes to be redeemed at such Xxxxxx’s registered
address.
(b) Such
notice shall identify the Notes to be redeemed and shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price and the amount of accrued interest (including amounts to be
accreted to principal of the Notes) to the Redemption Date;
(iii) the name
and address of the Paying Agent;
(iv) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(v) if fewer
than all the outstanding Notes are to be redeemed, the certificate numbers and
principal amount of the particular Notes to be redeemed;
(vi) that,
unless the Company defaults in making such redemption payment or the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture, interest and any Additional Interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the Redemption
Date;
(vii) the CUSIP
number, if any, printed on the Notes being redeemed;
and
(viii) that no
representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes.
(c) At the
Company’s written request delivered at least 10 days prior to the date such
notice is to be given (unless a shorter period shall be acceptable to the
Trustee), the Trustee shall give the notice of redemption in the Company’s name
and at the Company’s ex-
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pense. In
such event, the Company shall provide the Trustee with the information required
by this Section 3.03.
SECTION
3.04. Effect
of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the notice.
Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption
Price stated in the notice, plus accrued interest and Additional Interest, if
any, to the Redemption Date; provided,
however, that if
the Redemption Date is after a Regular Record Date and on or prior to the
Interest Payment Date, the accrued interest and Additional Interest, if any,
shall be payable to the Holder of the redeemed Notes registered on the relevant
Regular Record Date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other
Holder.
SECTION
3.05. Deposit
of Redemption Price.
Prior to 10:00 a.m. (New York City time) on the Redemption Date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary
is the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the Redemption Price of, and accrued interest and Additional Interest, if any,
on all Notes to be redeemed on that date other than Notes or portions of Notes
called for redemption that have been delivered by the Company to the Trustee for
cancellation. On or after the Redemption Date, interest shall cease to accrue on
Notes or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent funds sufficient to pay the principal of, plus
accrued and unpaid interest and Additional Interest, if any, on, the Notes to be
redeemed, unless the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture.
SECTION
3.06. Notes
Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder (at the Company’s expense) a new
Note equal in principal amount to the unredeemed portion of the principal amount
of the Note surrendered.
ARTICLE
4
AFFIRMATIVE
COVENANTS
SECTION
4.01. Payment
of Notes.
(a) The
Company shall pay the principal of and interest on the Notes on or before the
dates and in the manner provided in the Notes and in this Indenture. Principal
of and interest on the Notes shall be considered paid on the date due if on such
date the Trustee or the Paying Agent holds in accordance with this Indenture
money sufficient to pay all principal of and interest on the Notes then due and
the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
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(b) The
Company shall pay interest on overdue principal of the Notes at the rate
specified therefor in the Notes and shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
SECTION
4.02. Commission
Reports.
Whether or not required by the reporting requirements of Section 13 or
15(d) of the Exchange Act, so long as the Notes are outstanding, the Company
shall file with the Commission and provide the Trustee, Holders and prospective
Holders (upon request) within 15 days after it files or is required to file them
with the Commission, copies of its annual report and the information, documents
and other reports that are specified in Sections 13 and 15(d) of the
Exchange Act. In addition, the Company shall furnish to the Trustee and the
Holders, promptly upon their becoming available, copies of the annual report to
shareholders and any other information provided by the Company to its public
shareholders generally. The Company also shall comply with the other provisions
of TIA § 314(a). The receipt by the Trustee of any such reports and
documents pursuant to this Section shall not constitute notice or
constructive notice of any information contained in such documents or
determinable from information contained in such documents, including the
Company’s compliance with any covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).
SECTION
4.03. Preservation
of Corporate Existence.
Except as otherwise permitted by Article 6, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (a) its
corporate existence, and the corporate, limited liability company, partnership
or other existence of each of its Restricted Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary (it being understood that
legal name change may be made based upon reasonable discretion of the Company)
and (b) the rights (charter and statutory) and licenses of the Company and its
Restricted Subsidiaries; provided,
however, that the
Company shall not be required to preserve or keep in full force and effect any
such right or license, or the corporate, limited liability company, partnership
or other existence of any of its Restricted Subsidiaries if the loss thereof
does not and would not reasonably be expected to be materially adverse to the
Company and its Subsidiaries taken as a whole.
SECTION
4.04. [Intentionally
Omitted].
SECTION
4.05. [Intentionally
Omitted].
SECTION
4.06. Compliance
Certificate.
The Company shall deliver to the Trustee within 90 days of the end of the fiscal
year of the Company, an Officers’ Certificate made on behalf of the Company
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with Section 314(a)(4) of the TIA.
SECTION
4.07. [Intentionally
Omitted].
SECTION
4.08. [Intentionally
Omitted].
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SECTION
4.09. Offer
To Purchase upon Change of Control.
(a) Upon the
occurrence of a Change of Control, each Holder will have the right to require
the Company to purchase all or any part of such Holder’s Notes at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, as of the Change of Control
Payment Date (the “Change of Control Payment”) in accordance with the terms set
forth below (subject to the right of Holders of record on the relevant record
date to receive interest and Additional Interest, if any, due on the relevant
interest payment date); provided,
however, that,
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase the Notes pursuant to this Section 4.09 in the event
that it has exercised its right to redeem all the Notes under paragraph 5 of the
Notes. The Company shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act and any other securities laws and
regulations in connection with the purchase of Notes pursuant to this Section
4.09. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section 4.09, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.09(a) by virtue
thereof.
(b) Within 30
days following any Change of Control, the Company shall mail a notice to each
Holder with a copy to the Trustee (the “Change of Control Offer”)
stating:
(i) that a
Change of Control has occurred and that such Holder has the right to require the
Company to purchase all or a portion of such Holder’s Notes at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, to the date of purchase (subject to
the right of Holders of record on the relevant record date to receive interest
and Additional Interest, if any, on the relevant interest payment
date);
(ii) the
circumstances and relevant facts and financial information regarding such Change
of Control;
(iii) the
purchase date (which shall be no earlier than 10 Business Days nor later than 60
days from the date such notice is mailed (the “Change of Control Payment
Date”);
and
(iv) the
instructions determined by the Company, consistent with this Section 4.09, that
a Holder must follow in order to have its Notes purchased.
(c) On the
Change of Control Payment Date, the Company shall, to the extent lawful, (i)
accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer and (ii) pay to the Holders of Notes or portions
thereof so tendered an amount equal to the Change of Control Payment in respect
of all Notes or portions thereof so tendered. The Company shall promptly mail or
deliver by wire transfer to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Company shall promptly execute and mail
(or cause to be transferred by book-entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided,
however, that each
such new Note shall be in a principal amount of $1,000 or a multiple
thereof.
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(d) In the
event that at the time of such Change of Control the terms of the Credit
Documents restrict or prohibit the repurchase of Notes pursuant to this
Section 4.09, then prior to the mailing of the notice to Holders provided
for in Section 4.09(b) but in any event within 30 days following any Change
of Control, the Company shall (i) repay in full all Indebtedness under the
Credit Documents or, if doing so will allow the purchase of Notes, offer to
repay in full all Indebtedness under the
Credit Documents and repay
the Indebtedness under the Credit Documents of each lender who has accepted such
offer, or (ii) obtain the requisite consent under the Credit Documents to
permit the repurchase of the Notes as provided for in
Section 4.09(c).
(e) The
Company shall not be required to make a Change of Control Offer upon 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 4.09 and such third party purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.
SECTION
4.10. Offer
To Purchase by Application of Excess Proceeds.
(a) In the
event that, pursuant to Section 5.05, the Company shall be required to
commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it
shall follow the procedures specified in this Section 4.10. Each Asset Sale
Offer shall remain open for not less than ten (10) Business Days nor more than
sixty (60) days immediately following its commencement, except to the extent
that a longer period is required by Applicable Law (the “Offer
Period”).
(b) Upon the
commencement of an Asset Sale Offer, the Company shall send, by first class
mail, a notice to each of the Holders which shall contain all instructions and
materials necessary to enable such Holders to tender Notes 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:
(i) that the
Asset Sale Offer is being made pursuant to this Section 4.10 and
Section 5.05 and the length of time the Asset Sale Offer shall remain
open;
(ii) the Offer
Amount and the Purchase Date;
(iii) 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 to the Company at the
address specified in the notice at least three Business Days before the Purchase
Date;
(iv) that
Holders shall be entitled to withdraw their election if the Company receives,
not later than the second Business Day prior to the expiration of the Offer
Period, a 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 Xxxxxx is withdrawing his election to have such Note
purchased; and (v) other information required to be included pursuant to
Section 3.03.
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(c) On or
before the Business Day immediately after the termination of the Offer Period
(the “Purchase Date”), the Company shall, to the extent lawful, accept for
payment, on a pro
rata basis to
the extent necessary, Notes or portions thereof tendered pursuant to the Asset
Sale Offer with an aggregate principal amount equal to the aggregate principal
amount required to be purchased pursuant to Section 5.05 plus accrued and
unpaid interest, if any, thereon to the Purchase Date (the “Offer Amount”) or,
if the aggregate principal amount of Notes tendered is less than the Offer
Amount, the Company shall purchase all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made. The Company shall promptly (but in any case not
later than five (5) Business Days after the Purchase Date) mail or deliver by
wire transfer to each tendering Holder an amount equal to the purchase price of
the Notes tendered by such Holder and accepted by the Company for purchase, and
the Company shall promptly issue a new Note and deliver it 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.
SECTION
4.11. [Intentionally
Omitted].
SECTION
4.12. Further
Assurances.
The Company shall, upon the request of Holders, execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the provisions of this Indenture.
SECTION
4.13. Future
Guarantors.
Subject to Section 10.02(b), the Company shall cause each Restricted
Subsidiary that becomes a guarantor of the borrowings of the Company under the
Credit Agreement to become a Guarantor, and, if applicable, to execute and
deliver to the Trustee a supplemental guarantee in the form of Exhibit C
pursuant to which such Restricted Subsidiary will guarantee payment of the
Notes.
ARTICLE
5
NEGATIVE
COVENANTS APPLICABLE TO COMPANY AND ITS SUBSIDIARIES
SECTION
5.01. Stay,
Extension and Usury Laws.
The Company 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 its obligations under the Notes or this Indenture, and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants (to the extent that it may
lawfully do so) that it shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Holders, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION
5.02. Restricted
Payments.
(a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to
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(i) declare
or make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class of
Capital Stock (including any payment in connection with a merger or
consolidation involving the Company or any of its Restricted Subsidiaries),
except (x) dividends or distributions payable solely in its Capital Stock (other
than Disqualified Capital Stock or Capital Stock convertible into or
exchangeable for Disqualified Capital Stock) and (y) dividends or distributions
payable to the Company or to a Restricted Subsidiary (and, if the Restricted
Subsidiary making such dividend or distribution has equity holders other than
the Company or another Restricted Subsidiary, to such equity holders on a pro
rata basis),
(ii) purchase,
redeem or otherwise acquire for value any shares of Capital Stock of the Company
now or hereafter outstanding held by a Person other than the Company or another
Restricted Subsidiary,
(iii) make any
payment or prepayment of principal of, premium, if any, interest, redemption,
exchange, purchase, retirement, defeasance, sinking fund or other payment with
respect to, any Subordinated Indebtedness of the Company prior to scheduled
maturity, scheduled payment, scheduled repayment or scheduled sinking fund
payment thereof (except redemption, exchange, purchase, retirement, defeasance,
sinking fund or other payment within twelve months of the final maturity
thereof),
or
(iv) make any
Restricted Investments
(the
items described in clauses (i), (ii), (iii) and (iv) are referred to as
“Restricted Payments”); except that the Company or any Restricted Subsidiary of
the Company may make a Restricted Payment if at the time of and after giving
effect to such Restricted Payment:
(A) no
Default or Event of Default will have occurred and be continuing (or would
result therefrom);
(B) the
Company could Incur at least $1.00 of additional Indebtedness pursuant to
Section 5.04(a) hereof; and
(C) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Closing
Date (excluding Restricted Payments permitted by Section 5.02(b)(i) through
(iv), inclusive, (vii), (viii) and (ix)), would be less than the sum, without
duplication, of: (1) Consolidated EBITDA minus 150% of Consolidated
Interest Expense for the period (taken as one accounting period) from
January 1, 2005 to the end of the Company’s most recently ended fiscal
quarter for which internal financial statements of the Company and its
Restricted Subsidiaries are available at the time of such Restricted Payment;
(2) to the extent that any Restricted Investment that was made after the Closing
Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of
(x) the cash return of capital with respect to such Restricted Investment (less
the cost of disposition, if any) and (y) the initial amount of such Restricted
Investment; (3) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from the redesignation of Unrestricted
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Subsidiaries
as Restricted Subsidiaries (valued as provided in the definition of the
“Investment”); (4) net cash dividends or other net cash distributions paid to
the Company or any Restricted Subsidiary from Unrestricted Subsidiaries; (5) the
aggregate net cash proceeds and fair market value of property received by the
Company from the issue or sale of its Capital Stock (other than Disqualified
Capital Stock) or other capital contributions subsequent to the Closing Date
(other than net cash proceeds or property (x) received from an issuance or sale
of such Capital Stock to a Subsidiary of the Company or an employee stock
ownership plan, option plan or similar trust to the extent such sale to an
employee stock ownership plan, option plan or similar trust is financed by loans
from or guaranteed by the Company or any Restricted Subsidiary or (y) applied
for the purposes of clause (i) of Section 5.02(b)); and (6) aggregate
net cash proceeds received by the Company from the issue or sale since the
Closing Date of debt securities that have been converted into Capital Stock
(other than Disqualified Capital Stock) of the Company.
(b) The
provisions of Section 5.02(a) will not prohibit any of the
following:
(i) the
defeasance, redemption or repurchase of (x) Subordinated Indebtedness of the
Company permitted to be Incurred under this Indenture with the net cash proceeds
from an Incurrence of Permitted Refinancing Indebtedness or the substantially
concurrent sale (other than to a Subsidiary of the Company) of Capital Stock of
the Company or (y) Convertible Preferred Stock or other Capital Stock of the
Company with the Net Cash Proceeds from the substantially concurrent sale (other
than to a Subsidiary of the Company) of Capital Stock of the Company (other than
the Disqualified Capital Stock);
(ii) the
making by the Company of regularly scheduled payments in respect of any
Subordinated Indebtedness of the Company properly under this Indenture in
accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, any agreement pursuant to which such
Subordinated Indebtedness was issued;
(iii) the
making by the Company and its Restricted Subsidiaries of Permitted
Acquisitions;
(iv) the
making by the Company of regularly scheduled dividend payments in respect of
6 3/4% Cumulative Convertible Preferred Stock of the Company in accordance
with the terms thereof;
(v) dividends
paid within 60 days after the date of declaration thereof if at such date of
declaration such dividend would have complied with
Section 5.02(a);
(vi) the
repurchase or other acquisition of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees, former
employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved by
the Board of Directors of the Company under which such individuals purchase or
sell or are granted the option to purchase or sell,
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shares of
such common stock; provided,
however, that
the aggregate amount of such repurchases shall not exceed $5,000,000 in any
calendar year;
(vii) the
issuance of common stock of the Company to officers, directors and employees as
part of compensation arrangements;
(viii) the
making by the Company and its Restricted Subsidiaries of other Restricted
Payments not to exceed $10,000,000 in the aggregate since the Closing
Date;
and
(ix) the
repurchase or redemption of the 16% Notes.
(c) The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
the Restricted Payment.
SECTION
5.03. Dividend
and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to: (a) pay dividends or make any other
distributions to the Company with respect to any Capital Stock of such
Restricted Subsidiary or any other interest or participation in, or measured by,
such Restricted Subsidiary’s profits, or pay any Indebtedness or other
obligations owed by such Restricted Subsidiary to the Company or any of the
Company’s other Restricted Subsidiaries; (b) make loans or advances to the
Company or any of the Company’s other Restricted Subsidiaries; or (c) transfer
any of such Restricted Subsidiary’s property or assets to the Company or any of
the Company’s other Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of: (i) existing Indebtedness and
agreements, as in effect at or entered into on the Closing Date; (ii) the Credit
Documents as in effect as of the Closing Date, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or Refinancings thereof permitted hereunder, provided,
however, that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or Refinancings are not materially more restrictive
with respect to such provisions than those contained in the Credit Documents on
the Closing Date; (iii) this Indenture and the Notes; (iv) Applicable
Law; (v) any encumbrance or restriction (1) that restricts in a
customary manner the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or (2) contained
in security agreements securing Indebtedness of the Company or a Restricted
Subsidiary to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements; (vi) capital leases or
purchase money obligations for property acquired in the Ordinary Course of
Business that impose restrictions of the nature described in clause (v)
above on the property so acquired; (vii) Permitted Refinancing
Indebtedness; provided,
however, that such
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive than those contained in the
agreements governing the Indebtedness being Refinanced; (viii) any
instrument governing Indebtedness, Capital Stock or assets of a Person acquired
by the Company or any of the Company’s Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such instrument was created
or such Indebtedness was Incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or as-
-38-
sets of
any Person, other than the Person, or the property or assets of the Person, so
acquired, provided
that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be Incurred; (ix) Secured Indebtedness otherwise permitted to
be Incurred pursuant to this Indenture that limits the right of the debtor
thereunder to dispose of the assets securing such Indebtedness; (x) contracts
for the sale of assets, including without limitation customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary; (xi) restrictions on deposits or minimum net worth
requirements imposed by customers under contracts entered into in the Ordinary
Course of Business; (xii) customary provisions in joint venture agreements,
licenses and leases and other similar agreements entered into in the Ordinary
Course of Business; (xiii) any encumbrance or restriction contained in an
agreement evidencing Indebtedness of a Restricted Subsidiary permitted to be
Incurred subsequent to the Closing Date pursuant to Section 5.04; and (xiv)
any encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c) above imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (i) through (xiii)
above; provided
that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are 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 amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION
5.04. Incurrence
of Indebtedness and Issuance of Preferred Stock.
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, Incur,
directly or indirectly, any Indebtedness (including Acquired Indebtedness) and
shall not permit any of its Restricted Subsidiaries that is not a Guarantor to
issue any Preferred Stock; provided,
however, that
the Company and its Restricted Subsidiaries may Incur Indebtedness (including
Acquired Indebtedness), and the Restricted Subsidiaries that are not Guarantors
may issue Preferred Stock, if on the date of such Incurrence or issuance and
after giving effect thereto, (x) the Consolidated Adjusted Debt to EBITDA
Ratio is less than 6.00 to 1.00 and (y) the Consolidated Adjusted Senior
Debt to EBITDA Ratio is less than 4:00 to 1:00 (this test being referred to
herein as the “Leverage Test”). For the purpose of the calculation of the
Leverage Test, with respect to any period included in such calculation,
Consolidated EBITDA, the components of Consolidated Interest Expense, and
Consolidated Adjusted Debt and Capital Expenditures shall be calculated with
respect to such period by the Company in good faith on a pro forma basis
(including and consistent with Permitted Adjustments), giving effect to any
Permitted Acquisition, Asset Disposition or Incurrence or redemption or
repayment of Indebtedness that has given rise to the need for such calculation,
has occurred during such period or has occurred after such period and on or
prior to the date of such calculation (each a “Subject Transaction”), including,
with regard to Permitted Acquisitions and Asset Dispositions, by using the
historical financial statements of any business so acquired or to be acquired or
sold or to be sold and the consolidated financial statements of the Company and
its Restricted Subsidiaries which shall be reformulated as if such Subject
Transaction, and any Indebtedness Incurred or redeemed or repaid in connection
therewith, had been consummated or Incurred or redeemed or repaid at the
beginning of such period (and assuming that such Indebtedness bears interest
during any portion of the applicable measurement period prior to the relevant
acquisition at the weighted average of the
-39-
interest
rates applicable to outstanding revolving loans under the Credit Agreement
Incurred during such period).
(b) The
foregoing provisions shall not apply to:
(i) the
Incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;
(ii) the
Incurrence by the Company and its Restricted Subsidiaries of the Indebtedness
represented by the Notes and the Guarantees (not including any Additional Notes)
and the Exchange Notes and the Exchange Guarantees issued in exchange
therefor;
(iii) the
Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by (A) Capitalized Lease Obligations, mortgage financings or
purchase money Indebtedness Incurred for the purpose of financing all or any
part of the purchase price or cost of construction, repair, addition to or
improvement of property, plant or equipment used in the business of the Company
or such Subsidiary, in an aggregate principal amount not to exceed $180,000,000
at any one time outstanding, and (B) other purchase money Indebtedness in an
aggregate principal amount not to exceed (without duplication) $10,000,000 at
any one time outstanding;
(iv) 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 extend, Refinance, renew, replace, defease or refund, Indebtedness that was
permitted by this Indenture to be Incurred by the Company or such Restricted
Subsidiary;
(v) the
Incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness (A) between or among the Company and any Restricted Subsidiaries of
the Company and (B) consisting of debits and credits among the Company and its
Restricted Subsidiaries pursuant to the Centralized Cash Management System;
provided,
however, that
(1) any intercompany Indebtedness which is borrowed by the Company or a
Guarantor from a Restricted Subsidiary that is not a Guarantor shall be
expressly subordinated to the Notes or such Guarantor’s Guarantee and (2) (x)
any subsequent issuance or transfer of Capital Stock that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company, or (y) any sale or other transfer of any such
Indebtedness to a Person other than the Company or a Restricted Subsidiary of
the Company, or a lender or agent upon exercise of remedies under a pledge of
such Indebtedness under the Credit Documents, shall be deemed, in each case of
the foregoing clauses (2)(x) and (y), to constitute an Incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may
be;
(vi) the
Incurrence by the Company or any of its Restricted Subsidiaries of Interest Swap
Obligations that are Incurred for the purpose of fixing or hedging interest rate
risk with respect to any floating rate Indebtedness that is permitted by the
terms of this Indenture to be outstanding;
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(vii) the
Incurrence by the Company and its Restricted Subsidiaries of Indebtedness
evidenced by the Credit Documents (and the Guarantees thereof by the Company and
the Company’s Subsidiaries) in a principal amount not exceeding $1,115,600,000
less all amounts used to repay Indebtedness under the Credit Agreement pursuant
to Section 5.05; provided
that,
notwithstanding the limitations set forth in this clause (vii), in the
event of any permanent reduction or repayment of the Credit Agreement’s
revolving facility, the Company and its Restricted Subsidiaries shall have the
right to obtain additional commitments under, and extend the maturity of, such
revolving facility (and Incur additional revolving Indebtedness pursuant to such
additional commitments) in an amount not exceeding the amount of such permanent
reduction; provided,
further, that the
aggregate amount of all such additional commitments obtained by the Company and
its Restricted Subsidiaries since the date of this Indenture does not exceed
$100,000,000;
(viii) the
Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
under Currency Agreements;
(ix) the
Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or any of its Restricted Subsidiaries represented by letters of
credit for the account of the Company or such Restricted Subsidiary, as the case
may be, in order to provide security for workers’ compensation claims, payment
obligations in connection with self-insurance or similar requirements in the
Ordinary Course of Business;
(x) the
Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
in respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, completion guarantees, letters of credit surety or appeal bonds, payment
obligations in connection with self-insurance or similar obligations Incurred in
the Ordinary Course of Business;
(xi) the
Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or a Restricted Subsidiary of the Company that was permitted to
be Incurred by another provision of this Section 5.04;
(xii) Indebtedness
arising from agreements of the Company or a Restricted Subsidiary of the Company
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, Incurred in connection with an Asset Disposition
permitted by this Indenture or other sale or disposition of assets permitted
under this Indenture;
(xiii) Indebtedness
of a Restricted Subsidiary Incurred and outstanding on or prior to the date on
which such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred in contemplation of, in connection with, as consideration
in, or to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by
the Company); provided,
however, that on
the date that such Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness under
-41-
the first
paragraph of this Section 5.04 pursuant to the Leverage Test after giving
effect to the Incurrence of such Indebtedness pursuant to this
clause (xiii);
(xiv) the
Incurrence of Indebtedness not to exceed $35,000,000 at any time outstanding
secured by and only by, the Spectrum Assets; and
(xv) the
Incurrence of other Indebtedness not to exceed $100,000,000 in the aggregate
principal amount at any time outstanding.
(c) For
purposes of determining compliance with this Section 5.04, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described in clauses (i) through (xv) of the
immediately preceding paragraph or is entitled to be Incurred pursuant to
Section 5.04(a), the Company shall, in its sole discretion, classify (or
later reclassify) such item of Indebtedness in any manner that complies with
this Section 5.04 and will only be required to include the amount and type
of such Indebtedness in one of such clauses of Section 5.04(b) or pursuant
to Section 5.04(a); provided that
Indebtedness outstanding under the Credit Documents as of the Closing Date shall
be deemed to have been Incurred pursuant to clause (vii) of
Section 5.04(b). Accrual of interest, accretion of accreted value,
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms as the
Indebtedness on which such interest is being paid and any other issuance of
securities paid-in-kind shall not be deemed to be an Incurrence of Indebtedness
for purposes of this Section 5.04, but such amounts shall be included in
Consolidated Adjusted Debt to the extent provided for in such definition. In
addition, the Company may, at any time, change the classification of an item of
Indebtedness (or any portion thereof) to any other clause of
Section 5.04(b) or to Indebtedness properly Incurred under
Section 5.04(a), provided
that the
Company would be permitted to Incur such item of Indebtedness (or portion
thereof) pursuant to such other clause of Section 5.04(b) or
Section 5.04(a), as the case may be, at such time of
reclassification.
SECTION
5.05. Asset
Dispositions.
(a) The
Company shall not, and shall not permit any Restricted Subsidiary to, consummate
any Asset Disposition (provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries as a whole shall be
governed by the provisions of Article 6 and not by the provisions of this
Section 5.05) unless: (i) the consideration received is at least equal to
the fair market value of such assets (except as the result of (x) any
foreclosure or sale by the lenders under the Credit Documents or (y) Net
Proceeds received from an insurer or a Governmental Authority, as the case may
be, in the event of loss, damage, destruction or condemnation); and (ii) in the
case of Asset Dispositions that are not Permitted Asset Swaps, at least 75% of
the consideration thereof received by the Company or such Restricted Subsidiary
is in the form of cash and Cash Equivalents;
provided,
however, that
for purposes of this Section 5.05(a), the following are deemed to be cash: (x)
any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet) of the Company or any Restricted Subsidiary that are
assumed by the transferee of any such assets pursuant to any arrangement
releasing the Company or such Restricted Subsidiary from further liability and
(y) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the
Company or
-42-
such
Restricted Subsidiary into cash or Cash Equivalents within 90 days
after the Asset Disposition (to the extent of the cash received).
(b) Within
365 days after the receipt of any Net Proceeds from an Asset Disposition, the
Company or the Restricted Subsidiary making such Asset Disposition, as the case
may be, may, at its option, apply such Net Proceeds (i) to permanently
reduce Indebtedness Incurred by the Company under the Credit Agreement or any
Indebtedness of the Restricted Subsidiaries of the Company which are not
Guarantors, or to purchase the Notes (with the consent of the Holders thereof to
the extent required) or Indebtedness ranking pari
passu with the
Notes (and to correspondingly reduce commitments with respect thereto, to the
extent applicable) or (ii) to the acquisition of a controlling interest in
another business, the making of Capital Expenditures or the investment in or
acquisition of other long-term assets, in each case, in the same or a similar
line of business as the Company and its Subsidiaries engaged in at the time such
assets were sold or in a business reasonably related, complementing or ancillary
thereto or a reasonable expansion thereof. Pending the final application of any
such Net Proceeds, the Company may temporarily reduce revolving credit
Indebtedness under the Credit Agreement or otherwise invest such Net Proceeds in
any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset
Dispositions that are not applied or invested as provided in the first sentence
of this paragraph shall be deemed to constitute “Excess Proceeds.” When the
aggregate amount of Excess Proceeds exceeds $15,000,000, the Company shall make
an Asset Sale Offer pursuant to Section 4.10 to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the outstanding principal
amount thereof, plus accrued and unpaid interest, thereon to the date of
purchase, in accordance with the procedures set forth in Section 4.10;
provided,
however, that if
the Company elects (or is required by the terms of any other Indebtedness (other
than Subordinated Indebtedness or Disqualified Capital Stock) of the Company),
such Asset Sale Offer may be made ratably to purchase the Notes and other
Indebtedness (other than Subordinated Indebtedness or Disqualified Capital
Stock) of the Company. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
(c) The
Company will comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to this
provision. To the extent that the provisions of any securities laws or
regulations conflict with this provision, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this provision by virtue thereof.
SECTION
5.06. Transactions
with Affiliates.
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
management, consulting, investment banking, advisory or other services) with any
Affiliate of the Company (each an “Affiliate Transaction”), except:
(a) the
performance of any agreements as in effect as of the Closing Date or the
consummation of any transaction contemplated thereby (including pursuant to any
amendment thereto so long as any such amendment is not disadvantageous to the
Holders of the Notes in any material respect);
-44-
(b) transactions
(i) the terms of which are not materially less favorable to the Company or such
Restricted Subsidiary than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate of the Company and (ii) with
respect to which the Company delivers to the Trustee (A) with respect to any
Affiliate Transaction involving aggregate consideration in excess of
$10,000,000, a resolution of the Board of Directors of the Company set forth in
an Officers’ Certificate certifying that such Affiliate Transaction complies
with clause (i) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors of the
Company, and (B) with respect to any Affiliate Transaction or series of
Affiliate Transactions (other than any Affiliate Transaction with Cincinnati
Bell Technology Solutions Inc.) involving in excess of $30,000,000, an opinion
as to the fairness of such Affiliate Transaction to the Company from a financial
point of view issued by an Independent Qualified Party;
(c) payment
of customary compensation to officers, employees, consultants and investment
bankers for services actually rendered to the Company or such Restricted
Subsidiary, including indemnity;
(d) payment
of director’s fees plus expenses and customary indemnification of
directors;
(e) the
payment of the fees, expenses and other amounts payable by the Company and its
Restricted Subsidiaries in connection with the offering of the
Notes;
(f) Restricted
Payments permitted by Section 5.02 and Permitted Investments;
(g) transactions
(x) between or among the Company and its Restricted Subsidiaries, (y) between
and among the Restricted Subsidiaries and (z) between or among the Company
and/or its Subsidiaries pursuant to the Centralized Cash Management
System;
(h) any
licensing agreement or similar agreement entered into in the Ordinary Course of
Business relating to the use of technology or intellectual property between any
of the Company and its Subsidiaries, on the one hand, and any company or other
Person which is an Affiliate of the Company or its subsidiaries by virtue of the
fact that Person has made an Investment in or owns any Capital Stock of such
company or other Person which are fair to the Company or its Restricted
Subsidiaries, in the reasonable determination of the Board of Directors, or are
on terms at least as favorable as might reasonably have been obtained at such
time from an unaffiliated party;
(i) the
issuance of payments, awards or grants, in cash or otherwise, pursuant to, or
the funding of, employment arrangements approved by the Board of Directors of
the Company in good faith and customary loans and advances to employees of the
Company, or any Restricted Subsidiary of the Company to the extent otherwise
permitted in this Indenture;
(j) sale of
services by the BRCOM Group to the Company and its Restricted Subsidiaries, so
long as the prices for such services are consistent with past practices, are
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upon
terms which are not less favorable to the Company or such Restricted Subsidiary
than would be obtained in a comparable arm’s length transaction with a Person
that is not an Affiliate of the Company;
and
(k) transactions
permitted under Sections 5.06(f) and 5.06(k) of the 16% Notes Indenture, as such
Sections may be amended from time to time, and transactions permitted under the
indenture governing the 7 1/4% Notes or 8 3/8% Notes.
SECTION
5.07. Limitation
on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, Incur or permit to exist any Lien (other than (a) Liens
securing Guarantees and Obligations under the Credit Documents and
(b) Permitted Liens) on any asset now owned or hereafter acquired to secure
any Indebtedness of the Company or such Restricted Subsidiary; provided
that the
Company or any Restricted Subsidiary may create, incur or assume Liens to secure
any Indebtedness or a Guarantee thereof, so long as concurrently with the
incurrence or assumption of such Lien the Company or such Restricted Subsidiary
effectively provides that the Notes shall be secured equally and ratably with
(or prior and senior to, in the case of Liens with respect to Subordinated
Indebtedness) such Indebtedness, so long as such Indebtedness shall be so
secured.
SECTION
5.08. Limitation
on Issuances and Sales of Capital Stock of Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
transfer, convey, sell, issue, lease or otherwise dispose of any Capital Stock
of any Restricted Subsidiary to any Person (other than to the Company or another
Restricted Subsidiary of the Company), unless such transfer, conveyance, sale,
lease or other disposition shall be made in accordance with the provisions of
Section 5.05, including the provisions of Section 5.05 governing the
application of Net Proceeds from such transfer, conveyance, sale, lease or other
disposition; provided,
however, that
this Section 5.08 shall not restrict any pledge of Capital Stock of the
Company and its Restricted Subsidiaries securing Indebtedness under the Credit
Documents or other Indebtedness permitted to be secured by
Section 5.07.
SECTION
5.09. [Intentionally
Omitted].
SECTION
5.10. Conduct
of Business.
The Company shall not, and shall not permit any of its Subsidiaries, directly or
indirectly, to engage in any business other than business of the type engaged in
at the date hereof and any business reasonably related, complementing or
ancillary thereto or a reasonable expansion thereof.
SECTION
5.11. [Intentionally
Omitted].
SECTION
5.12. Sale
of Assets of the BRCOM Group.
Notwithstanding any provision contained in this Indenture, the execution and
delivery of the Agreement for the Purchase and Sale of Assets dated as of
February 22, 2003, as amended on June 6, 2003 and June 13, 2003 (the “BCSI
Purchase Agreement”) by and between BCSI, BCSIVA Inc. (f/k/a Broadwing
Communications Services of Virginia, Inc.), Broadwing Communications Real Estate
Services LLC, BRWSVCS LLC (f/k/a Broadwing Services LLC), IXC Business Services
LLC, BRWL LLC (f/k/a Broadwing Logistics LLC), BTI Inc. (f/k/a Broadwing
Telecommunications Inc.), IXC Internet Services, Inc., and MSM Associates,
Limited Partnership, on the one side,
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and C III
Communications, LLC, and C III Communications Operations, LLC, on the other
side, and the performance by the Company and its Subsidiaries of all
transactions contemplated thereby shall be permitted by, and shall not
constitute a Default or Event of Default under, this Indenture.
SECTION
5.13. Fall
Away Event.
In the event of the occurrence of a Fall Away Event:
(a) Sections 4.09,
4.13, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.10, 5.12 and 6.01(c) and the
definitions relevant thereto shall each no longer be in effect for the remaining
term of the Notes and any Note Guarantees then in effect shall be automatically
released.
(b) From and
after the date of the Fall Away Event, the Company shall not, and shall not
permit any Subsidiary of the Company to, issue, assume or guarantee any Debt if
such Debt is secured by any Lien upon any Principal Property of the Company or
any Subsidiary of the Company, whether owned at the date of the Fall Away Event
or thereafter acquired, without effectively securing the Notes equally and
ratably with such Debt. The foregoing restriction does not apply to:
(1) (i) Liens
on any property acquired, constructed or improved after the date of the Fall
Away Event (including Liens on Capital Stock) which are created or assumed
within 24 months after such acquisition, construction or improvement (or within
six months thereafter pursuant to a firm commitment for financing arrangements
entered into within such 24 month period) to secure or provide for the payment
of the purchase price or cost thereof incurred after the date of the Fall Away
Event, or (ii) existing Liens on property acquired (including Liens on Capital
Stock), provided such
Liens shall not apply to any property (or Capital Stock) theretofore owned by
the Company or a Subsidiary of the Company;
(2) Liens
existing on any property (including Liens on Capital Stock) acquired from a
Person merged with or into the Company or a Subsidiary of the Company;
(3) Liens on
property (including Liens on Capital Stock) of any Person existing at the time
it becomes a Subsidiary;
(4) Liens
securing Debt owed by a Subsidiary of the Company to the Company or to another
Subsidiary of the Company;
(5) Liens in
favor of governmental bodies to secure advance or other payments pursuant to any
contract or statute or to secure Indebtedness Incurred to finance the purchase
price or cost of constructing or improving the property subject to such Liens;
(6) Liens
securing tax exempt Indebtedness of the Company or a Subsidiary of the
Company;
(7) banker’s
Liens and rights of offset of the holders of Indebtedness of the Company or a
Subsidiary of the Company on monies deposited by the Company or a
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Subsidiary
of the Company with such holders of Indebtedness in the Ordinary Course of
Business of the Company or any such Subsidiary of the Company; or
(8) Liens for
extending, renewing or replacing Debt secured by any Lien referred to in the
foregoing clauses (1) to (7) inclusive or in this clause or any Lien existing on
the date of the Fall Away Event, provided,
however, that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of the property which secured the Lien so extended, renewed or replaced
(plus improvements on such property).
Such
restriction does not apply to the issuance, assumption or guarantee by the
Company or any Subsidiary of the Company of Debt secured by a Lien which would
otherwise be subject to the foregoing restriction up to an aggregate amount
which, together with all other secured Debt (not including secured Debt
permitted under the foregoing exceptions) and the Value of Significant Sale and
Leaseback Transactions existing at such time (other than Significant Sale and
Leaseback Transactions the proceeds of which have been applied to the retirement
of the Notes or of Funded Debt or to the purchase of other Principal Property,
and other than Significant Sale and Leaseback Transactions in which the property
involved would have been permitted to be subject to a Lien under clause (1)
above), does not exceed 15% of Consolidated Net Tangible Assets.
(c) From and
after the date of the Fall Away Event, the Company will not, and will not permit
any Subsidiary of the Company to, enter into any Significant Sale and Leaseback
Transactions (except for leases between the Company and a Subsidiary of the
Company or between Subsidiaries of the Company) unless the net proceeds of such
sale are at least equal to the fair market value of the subject Principal
Property and:
(1) the
Company or such Subsidiary of the Company would be entitled to incur Debt
secured by a Lien on the property to be leased without securing the Notes
pursuant to clause (1) of paragraph (b) above or
(2) the Value
thereof would be an amount permitted under the last sentence of paragraph (b)
above or
(3) the
Company or any of its Subsidiaries applies an amount equal to the fair market
value of such Principal Property
(a) to the
retirement of Funded Debt of the Company or a Subsidiary of the Company or
(b) to the
purchase of Principal Property (other than that involved in such Sale and
Leaseback Transaction).
(d) Notwithstanding
the preceding paragraphs (b) and (c), any Liens incurred or Significant Sale and
Leaseback Transactions entered into prior to the date of the Fall Away Event
shall be deemed permitted under such paragraphs whether or not such Liens and
Significant Sale and Leaseback Transactions would otherwise be permitted to
exist.
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ARTICLE
6
SUCCESSOR
COMPANY
Notwithstanding
anything in this Indenture to the contrary:
SECTION
6.01. Merger,
Consolidation, or Sales of Assets of the Company.
The Company shall not consolidate with or merge with or into (whether or not the
Company is the surviving entity), or directly and/or indirectly through its
Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries taken as a whole in one or more related transactions to,
any other Person, unless:
(a) the
resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation or other legal entity organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and the
Successor Company (if not the Company) shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the Obligations of the Company under the Notes and this
Indenture;
(b) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Company or
such Restricted Subsidiary at the time of such transaction), no Default shall
have occurred and be continuing;
(c) immediately
after giving effect to such transaction, the Successor Company would be able to
Incur an additional $1.00 of Indebtedness pursuant to Section 5.04(a);
and
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) are permitted by and comply with this
Indenture.
Notwithstanding
the foregoing: (i) any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or any
Guarantor and (ii) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction to
realize tax or other benefits.
The
restrictions contained in this Section 6.01 shall not apply to any
disposition of properties or assets of the BRCOM Group.
SECTION
6.02. Successor
Company Substituted.
The Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but the predecessor
Company in the case of a conveyance, transfer or lease of all or substantially
all its assets shall not be released from the obligation to pay the principal of
and interest on the Notes.
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ARTICLE
7
EVENTS
OF DEFAULT; REMEDIES SECTION
SECTION
7.01. Events
of Default.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an “Event of Default”):
(a) a default
in any payment of interest on any Note when due and payable or in any payment of
Additional Interest and such default continues for a period of 30
days;
(b) a default
in any payment of principal of any Note when due and payable at its Stated
Maturity, upon required redemption or repurchase, upon declaration or
otherwise;
(c) the
failure of the Company or any Subsidiary to comply with its obligations under
Article 6 of this Indenture;
(d) the
failure by the Company or any Subsidiary to comply with any of its obligations
under Section 4.02, 4.09 (other than a failure to purchase Notes), 4.11,
4.13 or Article 5 of this Indenture and such failure continues for 30 days after
a Notice of Default;
(e) the
failure by the Company or any Subsidiary to comply with its other agreements
contained in the Notes or this Indenture and such failure continues for 60 days
after a Notice of Default;
(f) the
failure by the Company or any Subsidiary to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $20,000,000 or its foreign
currency equivalent;
(g) the
rendering of any judgment or decree for the payment of money in excess of
$30,000,000 or its foreign currency equivalent against the Company or a
Subsidiary if such judgment or decree remains outstanding for a period of 60
days following such judgment and is not discharged, waived or stayed, and is not
adequately covered by insurance or indemnities which have been cash
collateralized;
(h) the
Company or any Significant Subsidiary, within the meaning of Bankruptcy
Law:
(i) commences
a voluntary case or proceeding,
(ii) consents
to the entry of a decree or order for relief against it in an involuntary case
or proceeding or to the commencement of any case or proceeding against
it,
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(iii) consents
to the filing of a petition or to the appointment of or taking possession by a
Custodian (as defined below) of it or for all or any substantial part of its
property,
(iv) makes or
consents to the making of a general assignment for the benefit of its creditors,
or
(v) generally
is not paying, or admits in writing that it is not able to pay its debts as they
become due;
or
(i) a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i) is for
relief against the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding;
(ii) appoints
a Custodian of the Company or any of its Significant Subsidiaries or for all or
any substantial part of the property of the Company or any of its Subsidiaries
or approves as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of any of the foregoing; or
(iii) orders
the winding up or liquidation of the Company or any of its Significant
Subsidiaries or adjudges any of them as bankrupt or insolvent.
The term
“Custodian” means any custodian, receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
The
foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body.
However,
a default under Section 7.01(d) or (e) will not constitute an Event of Default
until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company and the Trustee of
the default and the Company does not cure such default within the time specified
in clause 7.01(d) or (e) after receipt of such notice.
SECTION
7.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 7.01(h) or (i) with respect to the Company) occurs and is
continuing, the Trustee or the Holders of 25% or more in principal amount of the
then outstanding Notes, may, by notice to the Company, declare the principal of
and accrued but unpaid interest and any Additional Interest on all the Notes to
be due and payable. Upon such a declaration, such principal and interest will be
due and payable immediately. If an Event of Default specified in
Section 7.01(h) or (i) with respect to the Company occurs, the principal of
and interest on all the Notes will become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the outstanding Notes by written
notice to the Trustee may rescind any such acceleration with respect to the
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Notes and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal of or interest on Notes that has become due solely
because of such acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
The
Company shall give prompt notice (which in any event shall be within five (5)
Business Days of the event) to the Trustee and the Holders of the occurrence of
any Event of Default and the rescission, cure or waiver of any Event of
Default.
SECTION
7.03. Other
Remedies.
Notwithstanding any other provision of this Indenture, if an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The
Trustee may maintain a proceeding in its own name and as trustee of an express
trust even if it does not possess any of the Notes or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder 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. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION
7.04. Waiver
of Past Defaults.
The Holders of a majority in principal amount of the Notes by written notice to
the Trustee may waive an existing Default and its consequences except (a) a
Default in the payment of principal of or interest on a Note, (b) a Default
arising from the failure to redeem or purchase any Note when required pursuant
to the terms of this Indenture or (c) a Default in respect of a provision that
under Section 11.02 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent
right.
SECTION
7.05. Control
by Majority.
The Holders of a majority in principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 8.01, that the Trustee
determines is unduly prejudicial to the rights of other Holders or would involve
the Trustee in personal liability; provided,
however, that
the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION
7.06. Limitation
on Suits.
(a) Except
to
enforce the right to receive payment of principal of or interest on the Notes
when due, no Holder may pursue any remedy with respect to this Indenture or the
Notes unless:
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(i) the
Holder has previously given to the Trustee written notice stating that an Event
of Default has occurred and is continuing;
(ii) the
Holders of at least 25% in principal amount of the outstanding Notes make a
written request to the Trustee to pursue the remedy;
(iii) such
Holder or Holders offer to the Trustee security or indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(v) the
Holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction inconsistent with the request during such 60-day
period.
(b) A Holder
may not use this Indenture to prejudice the rights of another Holder or to
obtain a preference or priority over another Holder.
SECTION
7.07. Rights
of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and any Additional Interest and interest on
the Notes held by such Holder, on or after the respective due dates expressed or
provided for in the Notes, 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
7.08. Collection
Suit by Trustee.
If an Event of Default specified in Section 7.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Notes for the
whole amount then due and owing (together with interest on overdue portion of
the principal amount and (to the extent lawful) on any unpaid interest at the
rate provided for in the Notes) and the amounts provided for in
Section 8.07.
SECTION
7.09. Trustee
May File Proofs of Claim.
The Trustee may 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 and the
Holders allowed in any judicial proceedings relative to the Company or any
Subsidiary, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 8.07.
SECTION
7.10. Priorities.
If the Trustee collects any money or property pursuant to this Article 7,
it shall pay out the money or property in the following order:
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FIRST: to
the Trustee for its fees (excluding expenses and indemnities) due under
Section 8.07;
SECOND:
to the Trustee for amounts (other than those set forth in clause FIRST) due
under Section 8.07;
THIRD: to
Holders for amounts due and unpaid on the Notes for principal and interest,
ratably, and any Additional Interest without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, any
Additional Interest and interest, respectively; and
FOURTH:
to the Company.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 7.10. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.
SECTION
7.11. Undertaking
for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
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 7.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 7.06 or a suit by Holders of more than 10% in principal
amount of the Notes.
ARTICLE
8
TRUSTEE
SECTION
8.01. Duties
of Trustee.
(a) If an
Event of Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture 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,
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upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability 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 Section 8.01(b);
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust 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 7.05.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.
(e) Every
provision of this Indenture that in any way relates to the Trustee is subject to
Sections 8.01(a), 8.01(b) and
8.01(c).
8.01(c).
(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.
(g) Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall extend to the Registrar, Notes
Custodian, Paying Agent and an authenticating agent and be subject to the
provisions of this Section 8.01 and to the provisions of the
TIA.
SECTION
8.02. Rights
of Trustee.
Subject
to the provisions of Section 8.01:
(a) The
Trustee may conclusively rely on 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.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officers’
Certificate or Opinion of Counsel.
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(c) The
Trustee may act through 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 which it believes to be authorized or within its rights or powers;
provided,
however, that
the Trustee’s conduct does not constitute willful misconduct or
negligence.
(e) The
Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other paper
or document or as to whether or not an Event of Default shall have occurred
unless requested in writing to do so by the Holders of not less than a majority
in principal amount of the Notes at the time outstanding, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of
any kind of reason of such inquiry or investigation.
(g) The
permissive rights of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty unless so specified herein.
(h) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders, pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
therein or thereby.
(i) In no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(j) 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 Indenture.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
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(l) (The
Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.
SECTION
8.03. Individual
Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 8.10 and 8.11.
SECTION
8.04. Trustee’s
Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the
validity, priority or adequacy of this Indenture, or the Notes, it shall not be
accountable for the Company’s use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee’s certificate of authentication. The Trustee shall not be
responsible for any conduct or omission by the Company or the occurrence of any
Event of Default.
SECTION
8.05. Notice
of Defaults.
If a Default occurs and is continuing and is actually known to the
Trustee, the Trustee shall mail to each Holder notice of the Default (“Notice of
Default”) within 30 days after it is known to a Trust Officer or written notice
of it is received by the Trustee. Except in the case of a Default in payment of
principal, premium (if any) of or interest on any Note (including payments
pursuant to the redemption provisions of such Note), the Trustee may withhold
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding notice is in the interests of the Holders. If a
Notice of Default has been given to the Company by the Holders, a copy of such
Notice of Default shall be delivered by the Company to the Trustee. Except as
expressly provided herein, the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein, or in any of the documents executed in
connection with the Notes, or as to the existence of a Default or Event of
Default hereunder or thereunder, and may assume that no such Default or Event of
Default has occurred unless it has actual knowledge or received written notice
thereof.
SECTION
8.06. Reports
by Trustee to Holders.
As promptly as practicable after each year beginning with the year 2004
following the date of this Indenture, and in any event prior to February 1 in
each year, the Trustee shall mail (if required by Section 313(a) of the
TIA) to each Holder a brief report dated as of the preceding year that complies
with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of
each report at the time of its mailing to Holders shall be filed with the
Commission and each stock exchange (if any) on which the Notes are listed. The
Company agrees to notify promptly the Trustee whenever the Notes become listed
on any stock exchange and of any delisting thereof.
SECTION
8.07. Compensation
and Indemnity.
The Company shall pay to the Trustee from time to time compensation for its
services as may be agreed to between the Trustee and the Company in writing. The
Trustee’s compensation shall not be limited by any law on
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compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee’s agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable and documented attorneys’ fees)
incurred by or in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided,
however, that any
failure so to notify the Company shall not relieve the Company of its indemnity
obligations hereunder. The Company shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Company’s expense in the
defense. Such indemnified parties may have separate counsel and the Company
shall pay the fees and expenses of such counsel; provided,
however, that
the Company shall not be required to pay such fees and expenses if it assumes
such indemnified parties’ defense and, in such indemnified parties’ reasonable
judgment, there is no conflict of interest between the Company and such parties
in connection with such defense; provided,
further,
however, that
the selection of the Company’s counsel shall be reasonably acceptable to the
Trustee. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by an indemnified party through such party’s
own willful misconduct or negligence.
To secure
the Company’s payment obligations in this Section 8.07, the Trustee shall
have a lien prior to the Notes on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest and Additional Interest, if any, on particular Notes.
The
Company’s obligations pursuant to this Section 8.07 shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses after the occurrence of a
Default specified in Section 7.01(h) and (i) with respect to the Company or
any of its Subsidiaries, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, successors and
assigns.
SECTION
8.08. Replacement
of Trustee.
(a) The
Trustee may resign at any time by so notifying the Company in writing in
accordance with the provisions of Section 13.02. Any resignation of the
Trustee shall be effective immediately upon receipt by the Company of such
notice (unless such notice shall specify a later time as the effective time of
such resignation, in which case such later time shall be the effective time),
and the resignation of the Trustee shall not prejudice any rights of the Trustee
to receive any compensation, any reimbursement of any expenses or any indemnity
or right to being defended and held harmless under this Indenture. The
Holders of a majority in principal amount of the Notes may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
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(i) the
Trustee fails to comply with Section 8.10;
(ii) the
Trustee is adjudged bankrupt or insolvent;
(iii) a
receiver or other public officer takes charge of the Trustee or its property;
or
(iv) the
Trustee otherwise becomes incapable of acting.
(b) If the
Trustee resigns, is removed by the Company or by the Holders of a majority in
principal amount of the Notes and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
(c) A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in
Section 8.07.
(d) If a
successor Xxxxxxx does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee (at the Company’s expense) or the
Holders of 10% in principal amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the
Trustee fails to comply with Section 8.10, unless the Trustee’s duty to
resign is stayed as provided in TIA § 310(b), any Holder who has been a
bona fide Holder of a Note for at least six months may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(f) Notwithstanding
the replacement of the Trustee pursuant to this Section 8.08, the Company’s
obligations under Section 8.07 shall continue for the benefit of the
retiring Trustee.
SECTION
8.09. Successor
Trustee by Xxxxxx.
If the Trustee consolidates with, merges or converts into, or transfers or sells
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
In case
at the time such successor or successors by merger, conversion, sale or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full
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force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION
8.10. Eligibility;
Disqualification.
The Trustee shall at all times satisfy the requirements of TIA § 310(a).
The Trustee shall have, or in the case of a corporation included in a bank
holding company system, the related bank holding company shall have, a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
§ 310(b), subject to its right to apply for a stay of its duty to resign
under the penultimate paragraph of TIA § 310(b); provided,
however, that
there shall be excluded from the operation of TIA § 310(b)(1) any indenture
or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
SECTION
8.11. Preferential
Collection of Claims Against the Company.
The Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has resigned or been
removed shall be subject to TIA § 311(a) to the extent
indicated.
SECTION
8.12. Appointment
of Co-Trustee.
It is the purpose of this Indenture that there shall be no violation of any law
of any jurisdiction (including the law of the State of New York) denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that, in case of
litigation under this Indenture, and in particular in the case of the
enforcement thereof on default, or in the case the Trustee deems that by reason
of any present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any action which may be
desirable or necessary in connection therewith, it may be necessary that an
additional individual or institution act as a separate or
Co-Trustee.
In the
event that the Trustee shall appoint an additional individual or institution as
a separate or Co-Trustee, each and every remedy, power, right, claim, demand,
cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or conveyed to the
Trustee with respect thereto shall be exercisable by and vest in such separate
or Co-Trustee, but only to the extent necessary to enable any separate or such
separate or Co-Trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by any separate or
such separate or Co-Trustee shall run to and be enforceable by either of
them.
Should
any instrument in writing from the Company be required by the separate or
Co-Trustee so appointed by the Trustee for more fully and certainly vesting in
and confirming to it such estates, property, rights, powers, trusts, duties, and
obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company. In case the Co-Trustee or a
successor to either shall die or become incapable of acting, resign, or be
removed, all the estates, properties, rights, powers, trusts, duties and
obligations of any separate or such separate or Co-Trustee, so far as permitted
by law, shall vest in and be exercised by the Trustee until the appointment by
the Trustee of a successor to any separate or such
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separate
or Co-Trustee or a new separate or Co-Trustee. Any separate or Co- Trustee
appointed by the Trustee pursuant to this section may be removed by the Trustee
, in which case all powers, rights and remedies vested in the separate or
Co-Trustee shall again vest in the Trustee as if no such appointment as a
separate or Co-Trustee had been made.
ARTICLE
9
DISCHARGE
OF INDENTURE; DEFEASANCE SECTION
SECTION
9.01. Discharge
of Liability on Notes; Defeasance.
(a) When
(i) all outstanding Notes (other than Notes replaced or paid pursuant to
Section 2.07) have been canceled or delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable, whether
at maturity or as a result of the mailing of a notice of redemption pursuant to
Article 3 hereof, and the Company irrevocably deposits with the Trustee
funds in an amount sufficient, or U.S. Government Obligations, the principal of
and interest on which will be sufficient, or a combination thereof sufficient,
in the written opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required if
U.S. Government Obligations have been so deposited), to pay the principal amount
of and interest on the outstanding Notes when due at maturity or upon redemption
of all outstanding Notes, including interest thereon to maturity or such
Redemption Date (other than Notes replaced or paid pursuant to
Section 2.07), and Additional Interest, if any, and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 9.01(c), cease to be of further effect.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers’ Certificate and an Opinion of
Counsel and at the cost and expense of the Company.
(b) Subject
to Sections 9.01(c) and 9.02, the Company at any time may terminate (i) all of
its obligations under the Notes and this Indenture (“legal defeasance option”)
or (ii) its obligations under Article 4 and Article 5, and the operation of
Sections 6.01(c), 7.01(f), 7.01(g), 7.01(h) (with respect to Significant
Subsidiaries) and 7.01(i) (with respect to Significant Subsidiaries) (“covenant
defeasance option”). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option.
In the
event that the Company exercises its legal defeasance option or its covenant
defeasance option, each Guarantor will be released from all of its obligations
with respect to its Guarantee.
If the
Company exercises its legal defeasance option, payment of the Notes may not be
accelerated because of an Event of Default with respect thereto. If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 7.01(d),
7.01(f), 7.01(g), 7.01(h) (with respect only to Significant Subsidiaries) or
7.01(i) (with respect only to Significant Subsidiaries) or the failure of the
Company to comply with Section 6.01(c).
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Upon
satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations that
the Company terminates.
(c) Notwithstanding
paragraphs (a) and (b) above, the Company’s obligations in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 8.07, 8.08 and in this Article 9 shall survive until the
Notes have been paid in full. Thereafter, the Company’s obligations in Sections
8.07, 9.05 and 9.06 shall survive.
SECTION
9.02. Conditions
to Defeasance.
(a) The
Company may exercise its legal defeasance option or its covenant defeasance
option only if:
(i) the
Company irrevocably deposits in trust with the Trustee money in an amount
sufficient, or U.S. Government Obligations the principal of and interest on
which will be sufficient, or a combination thereof sufficient, to pay the
principal of and interest on the Notes when due at maturity or redemption, as
the case may be, including interest thereon to maturity or such Redemption Date
and Additional Interest, if any;
(ii) the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay principal
and interest when due on all the Notes to maturity or redemption, as the case
may be;
(iii) 123 days
pass after the deposit is made and during the 123-day period no Default
specified in Sections 7.01(h) and (i) with respect to the Company occurs
which is continuing at the end of the period;
(iv) the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of
1940;
(v) in the
case of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (1) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (2) 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 will not recognize income,
gain or loss for Federal income tax purposes as a result of such 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 defeasance had not
occurred;
(vi) in the
case of the covenant defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant de-
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feasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred; and
(vii) the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Notes as contemplated by this Article 9 have been complied
with.
(b) Before or
after a deposit, the Company may make arrangements satisfactory to the Trustee
for the redemption of Notes at a future date in accordance with
Article 3.
SECTION
9.03. Application
of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations deposited
with it pursuant to this Article 9. It shall apply the deposited money and
the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes.
The
Trustee shall be under no liability for interest on any money and U.S.
Government Obligations received by it in respect of the outstanding Notes except
as the Trustee may, at its sole option, otherwise agree with the
Company.
SECTION
9.04. Repayment
to the Company.
The Trustee and the Paying Agent shall promptly turn over to the Company upon
request any money or U.S. Government Obligations held by them as provided in
this Article 9 which, in the written opinion of a nationally recognized
firm of independent public accountants delivered to the Trustee (which delivery
shall only be required if U.S. Government Obligations have been so deposited),
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent discharge or defeasance in accordance with this
Article 9.
If money
for the payment of principal of or interest on the Notes has been deposited with
the Trustee or Paying Agent and remains unclaimed for two years after such
amount is due and payable, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, the Trustee and the Paying
Agent shall have no further liability for such funds and Holders entitled to the
money must look only to the recipient and not to the Trustee for
payment.
SECTION
9.05. Indemnity
for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION
9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article 9 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 Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 9;
pro-
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vided,
however, that,
if the Company has made any payment of interest on principal of any Notes
because of the reinstatement of its Obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE
10
GUARANTEES
SECTION
10.01. Guarantees.
(a) The
Restricted Subsidiaries of the Company that Guarantee borrowings by the Company
under the Credit Agreement, and certain future subsidiaries of the Company, as
primary obligors and not merely as sureties, hereby jointly and severally,
irrevocably and unconditionally Guarantee on an unsecured senior basis the
performance and full and punctual payment when due, whether at Stated Maturity,
by acceleration or otherwise, all obligations of the Company under this
Indenture (including obligations to the Trustee) and the Notes, whether for
payment of principal of or interest on or additional interest in respect of the
Notes, expenses, indemnification or otherwise (all such obligations guaranteed
by such Guarantors being herein called the “Guaranteed Obligations”). Each
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this
Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) Each
Guarantor waives presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment. Each Guarantor waives notice of any default under the Notes or
the Guaranteed Obligations. The obligations of each Guarantor hereunder shall
not be affected by (i) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Company or any
other Person under this Indenture, the Notes or any other agreement or
otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any of them;
(v) the failure of any Holder or Trustee to exercise any right or remedy against
any other guarantor of the Guaranteed Obligations; or (vi) any change in the
ownership of such Guarantor, except as provided in
Section 10.02(b).
(c) Each
Guarantor hereby waives any right to which it may be entitled to have its
obligations hereunder divided among the Guarantors, such that such Guarantor’s
obligations would be less than the full amount claimed. Each Guarantor hereby
waives any right to which it may be entitled to have the assets of the Company
first be used and depleted as payment of the Company’s or such Guarantor’s
obligations hereunder prior to any amounts being claimed from or paid by such
Guarantor hereunder. Each Guarantor hereby waives any right to which it may be
entitled to require that the Company be sued prior to an action being initiated
against such Guarantor.
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(d) Each
Guarantor further agrees that its Guarantee herein constitutes a guarantee of
payment, performance and compliance when due (and not a guarantee of collection)
and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed
Obligations.
(e) Except as
expressly set forth in Sections 9.01 and 10.02, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Notes or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the obligations,
or by any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of any Guarantor
or would otherwise operate as a discharge of any Guarantor as a matter of law or
equity.
(f) Except as
expressly set forth in Sections 9.01 and 10.02, each Guarantor agrees that its
Guarantee shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
(g) In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary obligations of the Company to
the Holders and the Trustee.
(h) Each
Guarantor agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations
guaranteed hereby may be accelerated as provided in Article 7 for the
purposes of any Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 7, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this
Section 10.01.
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(i) Each
Guarantor also agrees to pay, in addition to the amount stated above, any and
all costs and expenses (including reasonable counsel fees and expenses) incurred
by the Trustee or the Holders in enforcing any rights under this
Section 10.01.
(j) Upon
request of the Trustee, each Guarantor shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION
10.02. Limitation
on Liability.
(a) Any term
or provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed by
the applicable Guarantor without rendering the Guarantee, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
(b) Any
Guarantee of any Guarantor shall terminate and be of no further force or effect
and such Subsidiary Guarantor shall be deemed to be released from all
obligations under this Article 10: (i) in connection with any sale of all
of the Capital Stock of such Guarantor (including by way of merger or
consolidation) to a Person or group of Persons that is not (either or after
giving effect to such transaction) an Affiliate of the Company, if such sale is
made in compliance with Section 5.05 and, to the extent applicable, Section
6.01; (ii) if the Company designates such Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the provisions of
this Indenture; or (iii) if such Guarantor is released from its Guarantee of
borrowings by the Company under the Credit Agreement.
In the
event that the conditions specified in this Section 10.02(b) are satisfied
and the Company delivers to the Trustee an Opinion of Counsel and an Officers’
Certificate to that effect, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
SECTION
10.03. Successors
and Assigns.
Each Guarantee is a continuing guarantee and shall (a) remain in full force and
effect until payment in full of all the Guaranteed Obligations, (b) be binding
upon each Guarantor and its successors and (c) inure to the benefit of, and be
enforceable by, the Trustee, the Holders and their successors, transferees and
assigns.
SECTION
10.04. Execution
of Supplemental Guarantee for Future Guarantors.
Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.13 shall promptly execute and deliver to the Trustee a
supplemental guarantee in the form of Exhibit C hereto pursuant to which
such Subsidiary shall become a Guarantor under this Article 10 and shall
guarantee the Guaranteed Obligations. Concurrently with the execution and
delivery of such supplemental guarantee to this Indenture, the Company shall
deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to the
effect that such supplemental guarantee has been duly authorized, executed and
delivered by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar laws
relating to creditors’ rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, the Guarantee of such Guarantor
is a legal, valid and binding ob-
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ligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms and or to such other matters as the Trustee may reasonably
request.
SECTION
10.05. Non-Impairment.
The failure to endorse a Guarantee on any Note shall not affect or impair the
validity thereof.
SECTION
10.06. Endorsement
of Guarantees.
To evidence its Guarantee set forth in this Article 10, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form of
Exhibit D to this Indenture shall be endorsed by an officer of such
Guarantor on each Global Note and each Exchange Note authenticated and delivered
by the Company; provided
that the
Guarantee set forth in this Article 10 shall remain in full force and
effect notwithstanding any failure of a Guarantor to endorse on each Note a
notation of Guarantee.
ARTICLE
11
AMENDMENTS
SECTION
11.01. Without
Consent of Holders.
(a) The
Company, the Guarantors and the Trustee may amend this Indenture or the Notes
without notice to or consent of any Holder to:
(i) cure any
ambiguity, omission, defect or inconsistency;
(ii) provide
for the assumption by a successor corporation of the obligations of the Company
under this Indenture;
(iii) provide
for uncertificated Notes in addition to or in place of certificated Notes;
provided,
however, that
the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code;
(iv) add
additional Guarantees of the Notes;
(v) secure
the Notes;
(vi) add to
the covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company;
(vii) comply
with any requirement of the Commission in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA;
(viii) make any
change that does not adversely affect the rights of any Holder, subject to the
provisions of this Indenture;
(ix) provide
for the issuance of the Exchange Notes or Additional Notes; or
-66-
(x) change
the name or title of the Notes, and any conforming changes related
thereto.
(b) After an
amendment under this Section 11.01 becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. However, the failure
to give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 11.01.
SECTION
11.02. With
Consent of Holders.
(a) The
Company, the Guarantors and the Trustee may amend this Indenture or the Notes
without notice to any Holder but with the written consent of the Required
Holders (including consents obtained in connection with a tender offer or
exchange for the Notes). However, without the consent of each Holder affected,
an amendment may not:
(i) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement, waiver or modification;
(ii) reduce
the rate of or extend the time for payment of interest or any Additional
Interest on any Note;
(iii) reduce
the principal amount of or change the Stated Maturity of any Note;
(iv) reduce
the premium payable upon the redemption of any Note or change the time at which
any Note may be redeemed in accordance with Section 6 of the Notes;
(v) make any
Note payable in money other than that stated in the Note;
(vi) impair
the right of any Holder to receive payment of principal of and interest or any
Additional Interest on such Holder’s Notes on or after the due dates therefor or
to institute suit for the enforcement of any payment on or with respect to such
Xxxxxx’s Notes;
(vii) make any
change in Section 7.04 or 7.07 or the second sentence of this
Section 11.02(a);
(viii) make any
change in the ranking or priority of any Note or Note Guarantee that would
adversely affect the Holders; or
(ix) release,
other than in accordance with this Indenture, any Note Guarantee or collateral
securing the Notes.
It shall
not be necessary for the consent of the Holders under this Section 11.02 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
(b) After an
amendment under this Section 11.02 becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. The failure to give
such
-67-
notice to
all Holders, or any defect therein, shall not impair or affect the validity of
an amendment under this Section 11.02.
SECTION
11.03. Compliance
with Trust Indenture Act.
Every amendment to this Indenture or the Notes shall comply with the TIA as then
in effect.
SECTION
11.04. Revocation
and Effect of Consents and Waivers.
(a) A consent
to an amendment or a waiver by a Holder of a Note shall bind the Holder and
every subsequent Holder of that Note or portion of the Note that evidences the
same debt as the consenting Holder’s Note, even if notation of the consent or
waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Note or portion of the Note
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers’ Certificate from the Company certifying that the
requisite number of consents have been received. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the (i) receipt by the Company or the Trustee of the
requisite number of consents, (ii) satisfaction of conditions to effectiveness
as set forth in this Indenture and any indenture supplemental hereto containing
such amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Company and the Trustee.
(b) The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately preceding
paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.
SECTION
11.05. Notation
on or Exchange of Notes.
If an amendment changes the terms of a Note, the Trustee may require the Holder
of the Note to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or to
issue a new Note shall not affect the validity of such amendment.
SECTION
11.06. Trustee
To Sign Amendments.
The Trustee shall sign any amendment authorized pursuant to this Article 11
if the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 8.01)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture and that such amendment is the legal, valid and binding
obligation of the Company and the Guarantors enforceable against them in
accordance with its
-68-
terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 11.03).
ARTICLE
12
[INTENTIONALLY
OMITTED]
ARTICLE
13
MISCELLANEOUS
SECTION
13.01. Trust
Indenture Act Controls.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by, or with another provision (an
“incorporated provision”) included in, this Indenture by operation of TIA
§§ 310 to 318, inclusive, such imposed duties or incorporated provision
shall control.
SECTION
13.02. Notices.
Any notice or communication shall be in writing and delivered in person, mailed
by first-class mail addressed as follows or transmitted via telecopy (or other
facsimile device) with receipt confirmed as set forth below:
if to the
Company:
000 Xxxx
Xxxxxx Xxxxxx
Cincinnati,
Ohio
Attention:
Xxxx Xxxxxxxx
(facsimile
no.: (000) 000-0000)
with
copies to:
Xxxxxxx, Swaine & Xxxxx LLP
000
Xxxxxx Xxxxxx
New York,
NY 10019
Attention:
Xxxxxxx X. Xxxx, Esq.
(facsimile
no.: (000) 000-0000)
if to the
Trustee:
The Bank
of New York
000
Xxxxxxx Xxxxxx - 0X
New York,
New York 10286
Attention:
Corporate Trust Administration
(facsimile
no.: (000) 000-0000/5707)
-69-
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication mailed to a Holder shall be mailed first class mail, to
the Holder at the Holder’s address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
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, it is duly given, whether
or not the addressee receives it.
SECTION
13.03. Communication
by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).
SECTION
13.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an
Officers’ Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and
(b) an
Opinion of Counsel in form reasonably satisfactory to the Trustee stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
SECTION
13.05. Statements
Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to
Section 4.06) shall include:
(a) a
statement that the individual 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 individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
SECTION
13.06. When
Notes Disregarded.
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent
-70-
hereunder,
Notes owned by the Company, any Subsidiary or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Subsidiary shall in each case be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Trust Officer actually knows are so owned shall
be so disregarded. Subject to the foregoing, only Notes outstanding at the time
shall be considered in any such determination.
SECTION
13.07. Rules
by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION
13.08. Legal
Holidays.
If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a Regular Record Date is a Legal Holiday, the record date
shall not be affected.
SECTION
13.09. GOVERNING
LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION
13.10. No
Recourse Against Others. A
director, officer, employee, stockholder or member, as such, of the Company or
any of the Subsidiaries shall not have any liability for any obligations of the
Company or any of the Subsidiaries under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION
13.11. Successors.
All agreements of the Company and each Subsidiary in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION
13.12. Multiple
Originals; Counterparts.
The parties may sign any number of counterparts of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION
13.13. Table
of Contents; Headings.
The table of contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
SECTION
13.14. Incorporation.
All Exhibits and Schedules attached hereto are incorporated as part of this
Indenture as if fully set forth herein.
-71-
SECTION
13.15. Intent
To Limit Interest to Maximum.
In no event shall the interest rate payable on the Notes under this Indenture,
plus any other amounts paid by the Company to the Holders in connection
therewith, exceed the highest rate permissible under law that a court of
competent jurisdiction shall, in the final determination, deem applicable. The
Company and the Trustee, in executing and delivering this Indenture, intend
legally to agree upon the rate or rates of interest and the manner of payment
stated within it; provided,
however, that,
anything contained herein to the contrary notwithstanding, if said rate or rates
of interest or manner of payment exceeds the maximum allowable under applicable
law, then, ipso facto as of the date of this Indenture, the Company is and shall
be liable only for the payment of such maximum as allowed by law, and payment
received from the Company in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of any Notes then outstanding
to the extent of such excess, or, if such excess exceeds the then outstanding
principal, such excess shall be first set off against any other amounts then due
and owing by the Company and refunded to the Company.
[Signature
Pages Follow]
-72-
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.
COMPANY:
| CINCINNATI BELL INC. | ||
| |
|
|
| By: | ||
|
Name: Xxxx Xxxxxxxx | ||
| Title: Vice President and Treasurer | ||
GUARANTORS:
BCSI
INC.
BCSIVA
INC.
BRFS
LLC
BRCOM
INC.
BRHI
INC.
BRWL,
LLC
BRW SVCS
LLC
CINCINNATI
BELL ANY DISTANCE INC.
CINCINNATI
BELL COMPLETE PROTECTION INC.
CINCINNATI
BELL PUBLIC COMMUNICATIONS INC.
CINCINNATI
BELL TECHNOLOGY SOLUTIONS INC.
CINCINNATI
BELL TELECOMMUNICATIONS SERVICES INC.
CINCINNATI
BELL WIRELESS COMPANY
CINCINNATI
BELL WIRELESS HOLDINGS LLC
IXC
BUSINESS SERVICES, LLC
IXC
INTERNET SERVICES, INC.
XXXXXXXX.XXX
INC.
|
By: |
||
|
Name: Xxxx Xxxxxxxx | ||
| Title: Treasurer | ||
S-1
TRUSTEE:
| THE BANK OF NEW YORK | ||
| |
|
|
| By: | ||
|
Name: | ||
| Title: | ||
S-2
RULE
144A/REGULATION S APPENDIX
PROVISIONS
RELATING TO INITIAL NOTES,
PRIVATE
EXCHANGE NOTES
AND
EXCHANGE NOTES
1. Definitions
1.1 Definitions.
For the
purposes of this Appendix the following terms shall have the meanings indicated
below:
“Additional
Notes” means, subject to compliance with Sections 2.02 and 5.04 hereof, an
unlimited principal amount of 7% Senior Notes due 2015 issued from time to time
after the Closing Date under the terms of the Indenture (other than pursuant to
Section 2.06, 2.07, 2.09 or 3.06 of the Indenture and other than Exchange or
Private Exchange Notes, issued pursuant to a Registered Exchange Offer for other
Notes outstanding under the Indenture).
“Definitive
Note” means a certificated Initial Note, Exchange Note or Private Exchange Note
bearing, if required, the restricted notes legend set forth in Section 2.3 (e)
hereof.
“Depository”
means The Depository Trust Company, its nominees and their respective
successors.
“Distribution
Compliance Period”, with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (1) the day on which
such Notes are first offered to Persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S and (2) the
date on which such Notes are initially issued.
“Exchange
Notes” means (1) the 7% Senior Notes due 2015 issued pursuant to the Indenture
in connection with a Registered Exchange Offer pursuant to the Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a
registration statement filed with the SEC under the Securities Act.
“Initial
Notes” means (1) $250,000,000 aggregate principal amount of 7% Senior Notes due
2015 issued on the Closing Date and (2) Additional Notes, if any, issued in a
transaction exempt from the registration requirements of the Securities
Act.
“Notes”
means the Initial Notes, the Exchange Notes and the Private Exchange Notes,
treated as a single class.
“Notes
Custodian” means the custodian with respect to a Global Note (as appointed by
the Depository) or any successor Person thereto and shall initially be the
Trustee.
“Private
Exchange” means the offer by the Company, pursuant to a Registration Rights
Agreement, to the Purchasers to issue and deliver to each Purchaser, in exchange
for the
APP-1
Initial
Notes held by the Purchaser as part of its initial distribution, a like
aggregate principal amount of Private Exchange Notes.
“Private
Exchange Notes” means any 7% Senior Notes due 2015 issued in connection with a
Private Exchange.
“Purchase
Agreement” means (1) with respect to the Initial Notes issued on the Closing
Date, the Purchase Agreement dated February 2, 2005, among the Company, the
Guarantors and the Purchasers, and (2) with respect to each issuance of
Additional Notes, the purchase agreement or underwriting agreement among the
Company, the Guarantors and the Persons purchasing such Additional
Notes.
“Purchasers”
means (1) with respect to the Initial Notes issued on the Closing Date, Banc of
America Securities LLC and the initial purchasers listed in Schedule A to the
Purchase Agreement and (2) with respect to each issuance of Additional Notes,
the Persons purchasing such Additional Notes under the related Purchase
Agreement.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.
“Registered
Exchange Offer” means the offer by the Company, pursuant to a Registration
Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to
such Holders, in exchange for the Initial Notes, a like aggregate principal
amount of Exchange Notes registered under the Securities Act.
“Registration
Rights Agreement” means (1) the Exchange and Registration Rights Agreement dated
as of the Closing Date among the Company, the Guarantors and Banc of America
Securities LLC, as representative of the several initial purchasers named in
Schedule A of the Purchase Agreement, as Purchasers, and (2) with respect
to any Additional Notes, one or more registration rights agreements between the
Company and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Company to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
“Securities
Act” means the Securities Act of 1933.
“Shelf
Registration Statement” means the registration statement issued by the Company
in connection with the offer and sale of Initial Notes or Private Exchange Notes
pursuant to a Registration Rights Agreement.
“Transfer
Restricted Securities” means Notes that bear or are required to bear the legend
set forth in Section 2.3(e) hereof.
APP-2
1.2 Other
Definitions.
|
Term
|
Defined
in Section:
|
|
“Agent
Members” |
2.1(b) |
|
“Global
Note” |
2.1(a) |
|
“Permanent
Regulation S Global Note” |
2.1(a) |
|
“Regulation
S” |
2.1(a) |
|
“Restricted
Global Note” |
2.1(a) |
|
“Rule
144A Global Note” |
2.1(a) |
|
“Regulation
S Global Note” |
2.1(a) |
2. The
Notes.
2.1
(a)
Form
and Dating.
The Initial Notes issued on the Closing Date will be offered and sold by the
Company pursuant to a Purchase Agreement. The Initial Notes issued on the
Closing Date will be resold initially only to QIBs in reliance on Rule 144A
under the Securities Act (“Rule 144A”) and to persons outside the United States
under Regulation S under the Securities Act (“Regulation S”). Such Initial Notes
may thereafter be transferred to, among others, QIBs and purchasers in reliance
on Regulation S, in each case, subject to the restrictions on transfer set forth
herein. Such Initial Notes initially resold pursuant to Rule 144A shall be
issued initially in the form of one or more permanent global Notes in
definitive, fully registered form (collectively, the “Rule 144A Global Note”)
and Initial Notes sold pursuant to Regulation S shall be issued initially in the
form of one or more global Notes in definitive, fully registered form
(collectively, the “Regulation S Global Note”), in each case without interest
coupons and with the global notes legend and restricted notes legend set forth
in Exhibit A hereto, which shall be deposited on behalf of the purchasers of the
Initial Notes represented thereby with the Notes Custodian, and registered in
the name of the Depository or a nominee of the Depository, duly executed by the
Company and authenticated by the Trustee as provided in the Indenture. Except as
set forth in this Section 2.1(a), beneficial ownership interests in the
Regulation S Global Note will not be exchangeable for interests in the permanent
global note (the “Permanent Regulation S Global Note”), or any other Note
without a legend containing restrictions on transfer of such Note prior to the
expiration of the Distribution Compliance Period and then beneficial interests
in the Regulation S Global Note may be exchanged for interests in a Rule 144A
Global Note or the Permanent Regulation S Global Note only upon certification in
a form reasonably satisfactory to the Trustee that beneficial ownership
interests in such Regulation S Global Note are owned either by non-U.S. persons
or U.S. persons who purchased such interests in a transaction that did not
require registration under the Securities Act. Additional Notes offered after
the Closing Date may be sold in accordance with applicable law.
Beneficial
interests in Regulation S Global Notes may be exchanged for interests in Rule
144A Global Notes or Permanent Regulation S Global Notes only if (1) such
exchange occurs in connection with a transfer of Notes in compliance with Rule
144A, and (2) the transferor of the Regulation S Global Note first delivers to
the Trustee a written certificate (in a form satisfactory to the Trustee) to the
effect that the Regulation S Global Note is being transferred to
APP-3
a Person
(a) who the transferor reasonably believes to be a QIB, (b) purchasing for its
own account or the account of a QIB in a transaction meeting the requirements of
Rule 144A, and (c) in accordance with all applicable securities laws of the
States of the United States and other jurisdictions.
The Rule
144A Global Note, the Regulation S Note and the Permanent Regulation S Global
Note are collectively referred to herein as “Global Notes.” The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depository
or its nominee as hereinafter provided.
(b)
Book-Entry
Provisions.
This Section 2.1(b) shall apply only to a Global Note deposited with or on
behalf of the Depository.
The
Company shall execute and the Trustee shall, in accordance with this Section
2.1(b), authenticate and deliver initially one or more Global Notes that (a)
shall be registered in the name of the Depository for such Global Note or Global
Notes or the nominee of such Depository and (b) shall be delivered by the
Trustee to such Depository or pursuant to such Depository’s instructions or held
by the Trustee as custodian for the Depository.
Members
of, or participants in, the Depository (“Agent Members”) shall have no rights
under the Indenture with respect to any Global Note held on their behalf by the
Depository or by the Trustee as the custodian of the Depository or under such
Global Note, and the Company, the Trustee and any agent of the Company or the
Trustee shall be entitled to treat the Depository as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial interest in any
Global Note.
(c)
Certificated
Notes.
Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of
beneficial interests in Global Notes shall not be entitled to receive physical
delivery of certificated Notes.
2.2
Authentication.
The Trustee shall authenticate and deliver: (1) on the Closing Date,
an aggregate principal amount of $250,000,000 7% Senior Notes due 2015,
(2) any Additional Notes for an original issue in an aggregate principal
amount specified in the written order of the Company pursuant to Section 2.02 of
the Indenture and (3) Exchange Notes or Private Exchange Notes for issue only in
a Registered Exchange Offer or a Private Exchange, respectively, pursuant to a
Registration Rights Agreement, for a like principal amount of Initial Notes, in
each case upon a written order of the Company signed by one Officer or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company. Such order shall specify the amount of the Notes to be authenticated
and the date on which the original issue of Notes is to be authenticated and, in
the case of any issuance of Additional Notes pursuant to Section 2.14 of the
Indenture, shall certify that such issuance is in compliance with Section 5.04
of the Indenture.
APP-4
2.3
Transfer
and Exchange.
(a)
Transfer
and Exchange of Definitive Notes. When
Definitive Notes are presented to the Registrar with a request:
(x)
to
register the transfer of such Definitive Notes; or
(y)
to
exchange such Definitive Notes for an equal principal amount of Definitive Notes
of other authorized denominations,
the
Registrar or shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided,
however, that
the Definitive Notes surrendered for transfer or exchange:
(i)
shall be
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or its attorney duly authorized in writing; and
(ii)
if such
Definitive Notes are required to bear a restricted notes legend, they are being
transferred or exchanged pursuant to an effective registration statement under
the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or
(C) below, and are accompanied by the following additional information and
documents, as applicable:
|
(A) |
if
such Definitive Notes are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification
from such Holder to that effect; or |
|
(B) |
if
such Definitive Notes are being transferred to the Company, a
certification to that effect; or |
|
(C) |
if
such Definitive Notes are being transferred (x) pursuant to an exemption
from registration in accordance with Rule 144A, Regulation S or Rule 144
under the Securities Act; or (y) in reliance upon another exemption from
the requirements of the Securities Act: (i) a certification to that effect
(in the form set forth on the reverse of the Note) and (ii) if the Company
so requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i). |
(b)
Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global
Note. A
Definitive Note may not be exchanged for a beneficial interest in a Rule 144A
Global Note or a Permanent Regulation S Global Note except upon satisfaction of
the requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
APP-5
(i) certification,
in the form set forth on the reverse of the Note, that such Definitive Note is
either (A) being transferred to a QIB in accordance with Rule 144A or (B) is
being transferred after expiration of the Distribution Compliance Period by a
Person who initially purchased such Note in reliance on Regulation S to a buyer
who elects to hold its interest in such Note in the form of a beneficial
interest in the Permanent Regulation S Global Note; and
(ii)
written
instructions directing the Trustee to make, or to direct the Notes Custodian to
make, an adjustment on its books and records with respect to such Rule 144A
Global Note (in the case of a transfer pursuant to clause (b)(i)(A)) or
Permanent Regulation S Global Note (in the case of a transfer pursuant to clause
(b)(i)(B)) to reflect an increase in the aggregate principal amount of the Notes
represented by the Rule 144A Global Note or Permanent Regulation S Global Note,
as applicable, such instructions to contain information regarding the Depository
account to be credited with such increase,
then the
Trustee shall cancel such Definitive Note and cause, or direct the Notes
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Notes Custodian, the aggregate principal
amount of Notes represented by the Rule 144A Global Note or Permanent Regulation
S Global Note, as applicable, to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Rule 144A Global Note or Permanent Regulation S Global Note, as
applicable, equal to the principal amount of the Definitive Note so canceled. If
no Rule 144A Global Notes or Permanent Regulation S Global Notes, as applicable,
are then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate, a new Rule 144A Global Note or Permanent Regulation S Global Note,
as applicable, the appropriate principal amount.
(c)
Transfer
and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depository, in accordance with
the Indenture (including applicable restrictions on transfer set forth herein,
if any) and the procedures of the Depository therefor. A transferor of a
beneficial interest in a Global Note shall deliver to the Registrar a written
order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository to be credited
with a beneficial interest in the Global Note. The Registrar shall, in
accordance with such instructions instruct the Depository to credit to the
account of the Person specified in such instructions a beneficial interest in
the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(ii)
If the
proposed transfer is a transfer of a beneficial interest in one Global Note to a
beneficial interest in another Global Note, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of the Global
Note to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being
transferred.
APP-6
(iii)
Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in
Section 2.4), a Global Note may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository.
(iv)
In the
event that a Global Note is exchanged for Definitive Notes pursuant to Section
2.4 of this Appendix, prior to the consummation of a Registered Exchange Offer
or the effectiveness of a Shelf Registration Statement with respect to such
Notes, such Notes may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3 (including
the certification requirements set forth on the reverse of the Initial Notes
intended to ensure that such transfers comply with Rule 144A or Regulation S, as
the case may be) and such other procedures as may from time to time be adopted
by the Company.
(d)
Restrictions
on Transfer of Regulation S Global Notes.
During the Distribution Compliance Period, beneficial ownership interests in
Regulation S Global Notes may only be sold, pledged or transferred (i) to the
Company, (ii) so long as such Note is eligible for resale pursuant to Rule 144A,
to a Person whom the selling holder reasonably believes is a QIB that purchases
for its own account of a QIB to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (iii) in an offshore
transaction in accordance with Regulation S, (iv) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 (if applicable) under
the Securities Act or (v) 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.
(e)
Legend.
(i)
Except as
permitted by the following paragraphs (ii), (iii) and (iv), each Note
certificate evidencing the Transfer Restricted Securities (and all Notes issued
in exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: TWO YEARS] [IN THE CASE OF
REGULATION S NOTES: 40
APP-7
DAYS]
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
(ii)
Upon any
sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Note) pursuant to Rule 144 under the
Securities Act, the Registrar shall permit the transferee thereof to exchange
such Transfer Restricted Security for a certificated Note that does not bear the
legend set forth above and rescind any restriction on the transfer of such
Transfer Restricted Security, if the transferor thereof certifies in writing to
the Registrar that such sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the
Note).
(iii)
After a
transfer of any Initial Notes or Private Exchange Notes pursuant to and during
the period of the effectiveness of a Shelf Registration Statement with respect
to such Initial Notes or Private Exchange Notes, as the case may be, all
requirements pertaining to legends on such Initial Note or such Private Exchange
Note will cease to apply, the requirements
APP-8
requiring
any such Initial Note or such Private Exchange Note issued to certain Holders be
issued in global form will cease to apply, and a certificated Initial Note or
Private Exchange Note or an Initial Note or Private Exchange Note in global
form, in each case without restrictive transfer legends, will be available to
the transferee of the Holder of such Initial Notes or Private Exchange Notes
upon exchange of such transferring Holder’s certificated Initial Note or Private
Exchange Note or directions to transfer such Holder’s interest in the Global
Note, as applicable.
(iv)
Upon the
consummation of a Registered Exchange Offer with respect to the Initial Notes,
all requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will still apply with respect to
Holders of such Initial Notes that do not exchange their Initial Notes, and
Exchange Notes in certificated or global form will be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.
(v)
Upon the
consummation of a Private Exchange with respect to the Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will still apply with respect to
Holders of such Initial Notes that do not exchange their Initial Notes, and
Private Exchange Notes in global form with the global notes legend and the
restricted notes legend set forth in Exhibit A hereto will be available to
Holders that exchange such Initial Notes in such Private Exchange.
(f)
Cancellation
or Adjustment of Global Note.
At such time as all beneficial interests in a Global Note have either been
exchanged for certificated Notes, redeemed, purchased or canceled, such Global
Note shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for certificated Notes,
redeemed, purchased or canceled, the principal amount of Notes represented by
such Global Note shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Notes Custodian for such Global
Note) with respect to such Global Note, by the Trustee or the Notes Custodian,
to reflect such reduction.
(g)
Obligations
with Respect to Transfers and Exchanges of Notes.
(i)
To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate certificated Notes and Global Notes at the
Registrar’s request.
(ii)
No
service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments or similar governmental charge
payable upon exchange or transfer pursuant to Sections 3.06, 4.09, 4.10 and
11.05 of the Indenture).
(iii)
The
Registrar shall not be required to register the transfer of or exchange of (a)
any Definitive Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part or (b) any Note for a
period of 15 days before a mailing of a notice with respect to Notes to be
redeemed or during the period between a record date and the corresponding
interest payment date.
APP-9
(iv)
Prior to
the due presentation for registration of transfer of any Note, the Company, the
Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, interest and
Additional Interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the
contrary.
(v)
All Notes
issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Notes surrendered upon such transfer or
exchange.
(h)
No
Obligation of the Trustee.
(i)
The
Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Note, a member of, or a participant in the Depository or other Person
with respect to the accuracy of the records of the Depository or its nominee or
of any participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only to or
upon the order of the registered Holders (which shall be the Depository or its
nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note shall be exercised only through the Depository subject to the
applicable rules and procedures of the Depository. The Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its members, participants and any beneficial
owners.
(ii)
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Depository participants, members or
beneficial owners in any Global Note) 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.
2.4
Certificated
Notes.
(a) A Global
Note deposited with the Depository or with the Trustee as Notes Custodian for
the Depository pursuant to Section 2.1 shall be transferred to the beneficial
owners thereof in the form of certificated Notes in an aggregate principal
amount equal to the principal amount of such Global Note, in exchange for such
Global Note, only if such transfer complies with Section 2.3 and (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Note or if at any time such Depository ceases to be a
“clearing agency” registered under the Exchange Act and in either event a
successor depositary is not appointed by the Company within 90 days of such
notice, or (ii) an Event of Default has
APP-10
occurred
and is continuing and DTC notifies the Trustee of its decision to exchange the
Global Notes, or (iii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of certificated Notes under the
Indenture.
(b)
Any
Global Note that is transferable to the beneficial owners thereof pursuant to
this Section shall be surrendered by the Depository or the Notes Custodian to
the Trustee located at its Corporate Trust Office to be so transferred, in whole
or from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Note, an equal
aggregate principal amount of certificated Notes of authorized denominations.
Any portion of a Global Note transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 principal
amount and any integral multiple thereof and registered in such names as the
Depository shall direct. Any Definitive Note delivered in exchange for an
interest in the Global Note shall, except as otherwise provided by Section
2.3(e), bear the restricted Notes legend set forth in Exhibit A
hereto.
(c)
Subject
to the provisions of Section 2.4(b), the Holder of a Global Note shall be
entitled to grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under the Indenture or the
Notes.
(d)
In the
event of the occurrence of any of the events specified in Section 2.4(a), the
Company shall promptly make available to the Trustee a reasonable supply of
Definitive Notes in definitive, fully registered form without interest
coupons.
APP-11
EXHIBIT
A
[FORM
OF FACE OF INITIAL NOTE]
[Global
Notes Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
[Restricted
Notes Legend]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: TWO YEARS] [IN THE CASE OF
REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR
A-1
ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND
THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
A-2
| No. [___________] | $__________ | |
| CUSIP No. ______ |
7% Senior
Note due 2015
CINCINNATI
BELL INC., an Ohio corporation, promises to pay to __________, or registered
assigns, the principal amount of
[ ]
Dollars on February 15, 2015 (the “Stated Maturity Date”).
Interest
Payment Dates: February 15 and August 15, commencing August 15,
2005.
Record
Dates: February 1 and August 1.
Additional
provisions of this Note are set forth on the other side of this
Note.
IN
WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
The Bank
of New York, Trustee, certifies that this is one of the Notes referred to
in the Indenture.
| |
|
|
| By: | ||
|
Authorized Signatory | ||
Dated:
A-3
[FORM OF
REVERSE SIDE OF INITIAL NOTE]
7% Senior
Note due 2015
1.
Interest
(a)
CINCINNATI
BELL INC., an Ohio
corporation (the “Company”), promises to pay interest on the principal amount of
this Note at 7% per annum from the most recent date to which interest has been
paid or, if no interest has been paid, from February 16, 2005. The Company
will pay interest semi-annually in arrears on February 15 and
August 15 of each year, commencing August 15, 2005, or if any such day
is not a Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if
there is no existing Default or Event of 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, except in the case of the original
issuance of Notes, in which case interest shall accrue from the date of
authentication. 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 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 (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
(b)
Additional
Interest.
The holder of this Note is entitled to the benefits of the Registration Rights
Agreement, dated as of the date hereof, by and among the Company, the Guarantors
and the Purchasers named therein. Capitalized terms used in this paragraph (b)
but not defined herein have the meanings assigned to them in the Registration
Rights Agreement. If (i) the
Company has not filed any Registration Statement required by this Agreement with
the Commission on or prior to the applicable Filing Deadline; (ii)
any
Registration Statement required by this Agreement has not become effective on or
prior to the applicable Effectiveness Deadline;
(iii) the
Registered Exchange Offer has not been consummated on or prior to the
Consummation Deadline; or (iv)
if after
either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective (A) such Registration Statement thereafter
ceases to be effective (except as otherwise permitted in the Registration Rights
Agreement); or (B) such Registration Statement or the related prospectus ceases
to be usable (except as otherwise permitted in the Registration Rights
Agreement) in connection with resales of Transfer Restricted Securities during
the periods specified therein because either (1) any event occurs as a
result of which the related prospectus forming part of such Registration
Statement would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (2) it shall be
necessary to amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange Act or the
respective rules thereunder (each
such event referred to in clauses (i) through (v), a “Registration Default”),
the Company and the Guarantors will be jointly and severally obligated to pay
Additional Interest to each holder of Transfer Restricted Securities
over and
above the interest set forth in the title of the Securities from and including
the date on which any such Registration Default shall occur to but
A-4
excluding
the date on which all such Registration Defaults have been cured, at a rate of
0.25% per annum for the first 90-day period immediately following the occurrence
of a Registration Default, which rate shall increase by an additional 0.25% per
annum with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum rate of 1.0% per annum. All
accrued Additional Interest shall be paid to Holders in the same manner as
interest payments on the Notes on semi-annual payment dates which correspond to
interest payments for the Notes. Following the cure of all Registration
Defaults, the accrual of Additional Interest shall cease. The Trustee shall have
no responsibility with respect to the determination of the amount of any such
Additional Interest.
(c)
Record
Dates, etc.
Upon the issuance of an Exchange Note in exchange for this Note, any accrued and
unpaid interest (including Additional Interest) on this Note shall cease to be
payable to the Holder hereof but such accrued and unpaid interest (including
Additional Interest) shall be payable on the next Interest Payment Date for such
Exchange Note to the Holder thereof on the related Regular Record Date. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
(the “Regular Record Date”) for such interest which shall be the first calendar
day (whether or not a Business Day) of the calendar month in which such Interest
Payment Date occurs.
2.
Method
of Payment
The
Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are registered holders of Notes at the close of business on the
February 1 or August 1 next preceding the Interest Payment Date even if Notes
are canceled after the record date and on or before the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal, Additional Interest, if any, and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. The Company will make all money
payments in respect of a certificated Note (including principal and interest),
at the office of the Paying Agent or, at the option of the Company, by mailing a
check to the registered address of each Holder thereof; provided,
however, that
money payments on the Notes shall be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States of
America if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3.
Paying
Agent and Registrar
Initially,
The Bank of New York, a banking corporation organized under the laws of the
State of New York (the “Trustee”), will act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent, Registrar without notice.
The Company or any of its domestically incorporated Subsidiaries (other than any
member of the BRCOM Group) may act as Paying Agent, Registrar.
A-5
4.
Indenture
and Guarantees
The
Company issued the Notes under an Indenture, dated as of February 16, 2005
(the “Indenture”), among the Company, the Guarantors and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”).
Terms defined in the Indenture and used but not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Notes
are senior unsecured obligations of the Company. This Note is one of the series
of the Initial Notes that are referred to in the Indenture issued in an
aggregate original principal amount of $250,000,000. The Notes include the
Initial Notes and any Exchange Notes and Private Exchange Notes issued in
exchange for Initial Notes. The Initial Notes, the Exchange Notes and the
Private Exchange Notes are treated as a single class of Notes under the
Indenture. The Initial Notes of each series and the Exchange Notes and Private
Exchange Notes of the corresponding series are treated as a single series of
Notes under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of Capital Stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates and make asset sales. The
Indenture also imposes limitations on the ability of the Company to consolidate
or merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of the Company.
The Notes
are guaranteed, on a senior unsecured basis, by all existing and future
Restricted Subsidiaries that are or shall become Guarantors in accordance with
the terms of the Indenture.
5.
Optional
Redemption
Except as
set forth in the following two paragraphs, the Company may not redeem the Notes
prior to February 15, 2010. After this date, the Company may redeem the
Notes, in whole or in part, on not less than thirty (30) nor more than sixty
(60) days’ prior notice, at the following redemption prices (expressed as
percentages of principal amount), plus accrued and unpaid interest and
Additional Interest thereon, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest and
Additional Interest, if any due on the relevant interest payment date), if
redeemed during the twelve month period commencing on February 15 of the
years set forth below:
A-6
|
Year
|
Redemption
Price
|
|
2010
|
103.500%
|
|
2011
|
102.333%
|
|
2012
|
101.167%
|
|
2013
and thereafter
|
100.000%
|
At any
time prior to February 15, 2010, we may redeem all or part of the Notes upon not
less than 30 nor more than 60 days’ prior notice at a redemption price equal to
the sum of (i) 100% of the principal amount thereof, plus (ii) the Applicable
Premium as of the date of redemption, plus (iii) accured and unpaid interest, if
any, to the date of redemption.
Prior to
February 15, 2008, the Company may, on one or more occasions, also redeem
up to a maximum of 35% of the aggregate principal amount of the Notes
(calculated giving effect to any issuance of Additional Notes) with the Net Cash
Proceeds of one or more Equity Offerings by the Company, at a redemption price
equal to 107.000% of the aggregate principal amount thereof, plus accrued and
unpaid interest and Additional Interest thereon, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided however, that
after giving effect to such redemption:
a.
at least
65% of the aggregate principal amount of the Notes (calculated giving effect to
any issuance of Additional Notes) remains outstanding; and
b.
any such
redemption by the Company must be made within 60 days of such Equity Offering
and must be made in accordance with certain procedures set forth in the
Indenture.
6.
Sinking
Fund
The Notes
are not subject to any sinking fund.
7.
Notice
of Redemption
Notice of
redemption will be mailed by first-class mail at least 30 days but not more than
60 days before the Redemption Date to each Holder of Notes to be redeemed at
such Holder’s registered address. Notes in denominations larger than $1,000 may
be redeemed in part but only in multiples of $1,000. If money sufficient to pay
the Redemption Price of and accrued and unpaid interest and Additional Interest,
if any, on all Notes (or portions thereof) to be redeemed on the Redemption Date
is deposited with the Paying Agent on or before the Redemption Date and certain
other conditions are satisfied, on and after such date, cash interest and
Additional Interest, if any, ceases to accrue on such Notes (or such portions
thereof) called for redemption.
A-7
8.
Repurchase
of Notes at the Option of Holders upon Change of Control and Sale of
Assets
Upon the
occurrence of a Change of Control, each Holder of Notes shall have the right,
subject to certain conditions specified in the Indenture, to require the Company
to repurchase all or any part of the Notes of such Holder at a purchase price in
cash equal to 101% of the aggregate principal amount of the Notes to be
repurchased, plus accrued and unpaid interest thereon and Additional Interest,
if any, in respect thereof to the date of repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due and
Additional Interest, if any, on the relevant Interest Payment Date) as provided
in, and subject to the terms of, the Indenture.
In
accordance with Section 4.10 of the Indenture, the Company will be required
to offer to purchase Notes upon the occurrence of certain sales of
assets.
9.
Denominations;
Transfer; Exchange
The Notes
are in registered form without coupons in denominations of $1,000 and multiples
thereof. A Holder may transfer or exchange Initial Notes in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) or any Notes for a period of 15 days prior to a selection of Notes to
be redeemed.
10.
Persons
Deemed Owners
Except as
provided in paragraph 2 hereof, the registered Holder of this Note shall be
treated as the owner of it for all purposes.
11.
Unclaimed
Money
If money
for the payment of principal of or interest on the Notes has been deposited with
the Trustee or Paying Agent and remains unclaimed for two years after such
amount is due and payable, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any
such payment, the Trustee and the Paying Agent shall have no further liability
for such funds and Holders entitled to the money must look only to the recipient
and not to the Trustee for payment.
12.
Discharge
and Defeasance
Subject
to certain conditions, the Company at any time may terminate some of or all its
obligations under the Notes and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal of and
interest on the Notes to redemption or maturity, as the case may
be.
A-8
13.
Amendment,
Waiver
Subject
to certain exceptions set forth in the Indenture, (a) the Indenture or the Notes
may be amended without prior notice to any Holder but with the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange for the Notes) and (b) any default may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without notice to or the consent of any Holder of Notes, the Company, the
Guarantors and the Trustee may amend the Indenture or the Notes to: (a) cure any
ambiguity, omission, defect or inconsistency; (b) provide for the assumption by
a successor corporation of the obligations of the Company under the Indenture;
(c) provide for uncertificated Notes in addition to or in place of certificated
Notes; provided,
however, that
the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code; (d) add additional
Guarantees of the Notes; (e) secure the Notes; (f) add to the covenants of the
Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company in the Indenture; (g) comply with any requirement of
the Commission in connection with qualifying, or maintaining the qualification
of, the Indenture under the TIA; (h) make any change that does not adversely
affect the rights of any Holder, subject to the provisions of the Indenture; (i)
provide for the issuance of the Exchange Notes or Additional Notes; or (j)
change the name or title of the Notes, and any conforming changes related
thereto.
14.
Defaults,
Remedies and Acceleration
If an
Event of Default (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company) occurs and is
continuing, the Trustee or the Holders of 25% or more in principal amount of the
outstanding Notes may declare the principal of and accrued but unpaid interest
on all the Notes to be due and payable. Upon such a declaration, such principal
and interest shall be due and payable immediately. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of and interest on all the Notes shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the Notes may rescind any such acceleration with
respect to the Notes and its consequences.
Subject
to the provisions of the Indenture relating to the duties of the Trustee, in
case an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any rights or powers under the Indenture at the request
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable indemnity or security against any loss, liability or expense.
Except to enforce the right to receive payment of principal or interest when
due, no Holder may pursue any remedy with respect to the Indenture or the Notes
unless (i) such Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Notes have requested the Trustee in writing
to pursue the remedy, (iii) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after receipt of
the request and the offer of
A-9
security
or indemnity and (v) the Holders of a majority in principal amount of the
outstanding Notes have not given the Trustee a direction inconsistent with such
request during such 60-day period. Subject to certain restrictions, the Holders
of a majority in principal amount of the outstanding Notes are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or, subject to certain exceptions in the Indenture,
that the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15.
Trustee
Dealings with the Company
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with and collect obligations owed to it by the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee.
16.
No
Recourse Against Others
A
director, officer, employee or stockholder, as such, of the Company or any of
the Subsidiaries shall not have any liability for any obligations of the Company
or any of the Subsidiaries under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the
Notes.
17.
Authentication
This Note
shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Note.
18.
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 entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19.
Governing
Law
THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
A-10
20.
CUSIP
Numbers
The
Company has caused CUSIP numbers to be printed on the Notes and has directed the
Trustee to 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 Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed
thereon.
21.
Designations
For
purposes of the 8 3/8% Indenture and the 16% Notes Indenture, this Note shall
constitute “Designated Senior Indebtedness.”
22.
Holders’
Compliance With Registration Rights Agreement
Each
Holder of a Note, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.
The
Company will furnish to any Holder of Notes upon written request and without
charge to the Holder a copy of the Indenture which has in it the text of this
Note.
A-11
ASSIGNMENT
FORM
To assign
this Note, fill in the form below:
I or we
assign and transfer this Note to
(Print or
type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint
agent 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 other side of this Note.
A-13
CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This
certificate relates to $_________ principal amount of Notes held in definitive
form by the undersigned.
The
undersigned has requested the Trustee by written order to exchange or register
the transfer of a Note or Notes.
In
connection with any transfer of any of the Notes evidenced by this certificate
occurring prior to the expiration of the period referred to in Rule 144(k) under
the Securities Act, the undersigned confirms that such Notes are being
transferred in accordance with its terms:
CHECK ONE
BOX BELOW
|
p
|
(1) |
to
the Company; or
|
|
p
|
(2)
|
to
the Registrar for registration in the name of the Holder, without
transfer; or
|
|
p
|
(3)
|
pursuant
to an effective registration statement under the Securities Act of 1933;
or
|
|
p
|
(4)
|
inside
the United States to a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act of 1933) that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is
given that such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the Securities Act
of 1933; or
|
|
p
|
(5)
|
outside
the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
|
|
p
|
(6)
|
to
an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain representations and agreements;
or
|
|
p
|
(7)
|
pursuant
to another available exemption from registration provided by Rule 144
under the Securities Act of 1933.
|
A-14
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Notes evidenced by this certificate in the name of any Person other than the
registered holder thereof; provided,
however, that if
box (5), (6) or (7) is checked, the Trustee may require, prior to registering
any such transfer of the Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
______________________________
Your Signature
Signature
Guarantee:
Date:
______________________ ______________________________
Signature
must be guaranteed Signature
of Signature Guarantee
by a
participant in a recognized
signature
guaranty medallion
program
or other signature
guarantor
acceptable to the
Trustee
____________________________________________________________
TO BE
COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
___________________ ______________________________
NOTICE:
To be executed by an
executive
officer
A-15
OPTION OF
HOLDER TO ELECT PURCHASE
If you
want to elect to have this Note purchased by the Company pursuant to
Section 4.09 (Change of Control) or Section 4.10 (Application of
Excess Proceeds from Sale of Assets) of the Indenture, check the
box:
|
o |
o |
|
Limitation
on Sales of Assets
and
Subsidiary Stock |
Change
of Control |
Limitation
on Sales of Assets and Subsidiary Stock
Change of Control If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.09 or
4.10 of the
Indenture, state the principal amount ($1,000 or a multiple
thereof):
$
Date:
__________________ Your Signature: __________________
(Sign
exactly as your name appears on the other side of the Note)
Signature
Guarantee:___________________________________________________________
Signature
must be guaranteed by a participant in a recognized signature
guaranty
medallion program or other signature guarantor acceptable to the
Trustee
A-16
[TO BE
ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The
following increases or decreases in this Global Note have been
made:
|
Date
of Exchange |
Amount
of decrease in Principal Amount of this
Global
Note
|
Amount
of increase in Principal Amount of this
Global
Note
|
Principal
Amount of this Global Note following such
decrease or
increase |
Signature
of authorized officer
of
Trustee or
Notes
Custodian |
A-17
EXHIBIT
B
[FORM OF
FACE OF EXCHANGE NOTE
OR
PRIVATE EXCHANGE NOTE]
*/ If the
Note is to be issued in global form add the Global Notes Legend from Exhibit A
and the attachment from such Exhibit A captioned “[TO BE ATTACHED TO GLOBAL
NOTES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE”.
**/ If
the Note is a Private Exchange Note issued in a Private Exchange to a Purchaser
holding an unsold portion of its initial allotment, add the Restricted Notes
Legend from Exhibit A and replace the Assignment Form included in this Exhibit B
with the Assignment Form included in such Exhibit A.
B-1
| No. [___________] | $__________ | |
| CUSIP No. ______ |
7% Senior
Note due 2015
CINCINNATI
BELL INC., an Ohio corporation, promises to pay to ___________________, or
registered assigns, the principal amount of [ ] Dollars
on February 15, 2015 (the “Stated Maturity Date”).
Interest
Payment Dates: February 15 and August 15, commencing August 15,
2005.
Record
Dates: February 1 and August 1.
B-2
Additional
provisions of this Note are set forth on the other side of this
Note.
IN
WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
| CINCINNATI BELL INC. | ||
| |
|
|
| By: | ||
|
Name: | ||
| Title: | ||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
The Bank
of New York, Trustee, certifies that this is one of the Notes referred to
in the Indenture.
| |
|
|
| By: | ||
|
Authorized Signatory | ||
Dated:
B-3
[FORM OF
REVERSE SIDE OF EXCHANGE NOTE
OR
PRIVATE EXCHANGE NOTE]
7% Senior
Note due 2015
1.
Interest
CINCINNATI
BELL INC., an Ohio
corporation (the “Company”), promises to pay interest on the principal amount of
this Note at 7% per
annum from the most recent date to which interest has been paid or, if no
interest has been paid, from February 16, 2005. The Company will pay
interest semi-annually in arrears on February 15 and August 15 of each year,
commencing August 15, 2005, or if any such day is not a Business Day, on the
next succeeding Business Day (each an “Interest Payment Date”). Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of original issuance; provided that if
there is no existing Default or Event of 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, except in the case of the original
issuance of Notes, in which case interest shall accrue from the date of
authentication. 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 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 (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will 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 Notes (except defaulted interest) to the
Persons who are registered holders of Notes at the close of business on the
February 1 or August 1 next preceding the Interest Payment Date even if Notes
are canceled after the record date and on or before the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. The Company will make all money payments in respect of a
certificated Note (including principal and interest), at the office of the
Paying Agent or, at the option of the Company, by mailing a check to the
registered address of each Holder thereof; provided,
however, that
money payments on the Notes shall be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
B-4
3.
Paying
Agent and Registrar
Initially,
The Bank of New York, a banking corporation
organized under the laws of the State of New York (the “Trustee”), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar without notice. The Company or any of its domestically
incorporated Subsidiaries (other than any member of the BRCOM Group) may act as
Paying Agent, Registrar.
4.
Indenture
and Guarantees
The
Company issued the Notes under an Indenture, dated as of February 16, 2005
(the “Indenture”), among the Company, the Guarantors and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”).
Terms defined in the Indenture and used but not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all terms and
provisions of the Indenture, and Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions.
The Notes
are senior unsecured obligations of the Company. This Note is one of the
Exchange Notes referred to in the Indenture. The Notes include the Initial Notes
and the Exchange Notes and any Private Exchange Notes issued in exchange for
Initial Notes. The Initial Notes, the Exchange Notes and the Private Exchange
Notes are treated as a single class of Notes under the Indenture. The Initial
Notes of each series and the Exchange Notes and the Private Exchange Notes of
the corresponding series are treated as a single series of Notes under the
Indenture. The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of Capital Stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates and make asset sales. The
Indenture also imposes limitations on the ability of the Company to consolidate
or merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of the Company.
The Notes
are guaranteed, on a senior unsecured basis, by all existing and future
Restricted Subsidiaries that are or shall become Guarantors in accordance with
the terms of the Indenture.
5.
Optional
Redemption
Except as
set forth in the following two paragraphs, the Company may not redeem the Notes
prior to February 15, 2010. After this date, the Company may redeem the
Notes, in whole or in part, on not less than thirty (30) nor more than sixty
(60) days’ prior notice, at the following redemption prices (expressed as
percentages of principal amount), plus accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the twelve month period commencing on February 15 of the
years set forth below:
B-5
|
Year
|
Redemption
Price
|
|
2010
|
103.500%
|
|
2011
|
102.333%
|
|
2012
|
101.167%
|
|
2013
and thereafter
|
100.000%
|
At any
time prior to February 15, 2010, we may redeem all or part of the Notes upon not
less than 30 nor more than 60 days’ prior notice at a redemption price equal to
the sum of (i) 100% of the principal amount thereof, plus (ii) the Applicable
Premium as of the date of redemption, plus (iii) accured and unpaid interest, if
any, to the date of redemption.
Prior to
February 15, 2008, the Company may, on one or more occasions, also redeem
up to a maximum of 35% of the aggregate principal amount of the Notes
(calculated giving effect to any issuance of Additional Notes) with the Net Cash
Proceeds of one or more Equity Offerings by the Company, at a redemption price
equal to 107.000% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided however, that
after giving effect to such redemption:
a. at least
65% of the aggregate principal amount of the Notes (calculated giving effect to
any issuance of Additional Notes) remains outstanding; and
b. any such
redemption by the Company must be made within 60 days of such Equity Offering
and must be made in accordance with certain procedures set forth in the
Indenture.
6. Sinking
Fund
The Notes
are not subject to any sinking fund.
7. Notice
of Redemption
Notice of
redemption will be mailed by first-class mail at least 30 days but not more than
60 days before the Redemption Date to each Holder of Notes to be redeemed at
such Holder’s registered address. Notes in denominations larger than $1,000 may
be redeemed in part but only in multiples of $1,000. If money sufficient to pay
the redemption price of and accrued and unpaid interest on all Notes (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date, cash interest ceases to accrue on such Notes
(or such portions thereof) called for redemption.
B-6
8.
Repurchase
of Notes at the Option of Holders upon Change of Control and Sale of
Assets
Upon the
occurrence of a Change of Control, each Holder of Notes shall have the right,
subject to certain conditions specified in the Indenture, to require the Company
to repurchase all or any part of the Notes of such Holder at a purchase price in
cash equal to 101% of the aggregate principal amount of the Notes to be
repurchased, plus accrued and unpaid interest thereon in respect thereof to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date) as
provided in, and subject to the terms of, the Indenture.
In
accordance with Section 4.10 of the Indenture, the Company will be required
to offer to purchase Notes upon the occurrence of certain sales of
assets.
9. Denominations;
Transfer; Exchange
The Notes
are in registered form without coupons in denominations of $1,000 and multiples
thereof. A Holder may transfer or exchange Initial Notes in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) or any Notes for a period of 15 days prior to a selection of Notes to
be redeemed.
10. Persons
Deemed Owners
Except as
provided in paragraph 2 hereof, the registered Holder of this Note shall be
treated as the owner of it for all purposes.
11. Unclaimed
Money
If money
for the payment of principal of or interest on the Notes has been deposited with
the Trustee or Paying Agent and remains unclaimed for two years after such
amount is due and payable, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, the Trustee and the Paying
Agent shall have no further liability for such funds and Holders entitled to the
money must look only to the recipient and not to the Trustee for
payment.
12. Discharge
and Defeasance
Subject
to certain conditions, the Company at any time may terminate some of or all its
obligations under the Notes and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal of and
interest on the Notes to redemption or maturity, as the case may
be.
B-7
13.
Amendment,
Waiver
Subject
to certain exceptions set forth in the Indenture, (a) the Indenture or the Notes
may be amended without prior notice to any Holder but with the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange for the Notes) and (b) any default may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without notice to or the consent of any Holder of Notes, the Company, the
Guarantors and the Trustee may amend the Indenture or the Notes to: (a) cure any
ambiguity, omission, defect or inconsistency; (b) provide for the assumption by
a successor corporation of the obligations of the Company under the Indenture;
(c) provide for uncertificated Notes in addition to or in place of certificated
Notes; provided,
however, that
the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code; (d) add additional
Guarantees of the Notes; (e) secure the Notes; (f) add to the covenants of the
Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company in the Indenture; (g) comply with any requirement of
the Commission in connection with qualifying, or maintaining the qualification
of, the Indenture under the TIA; (h) make any change that does not adversely
affect the rights of any Holder, subject to the provisions of the Indenture; (i)
provide for the issuance of the Exchange Notes or Additional Notes; or (j)
change the name or title of the Notes, and any conforming changes related
thereto.
14. Defaults,
Remedies and Acceleration
If an
Event of Default (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company) occurs and is
continuing, the Trustee or the Holders of 25% or more in principal amount of the
outstanding Notes may declare the principal of and accrued but unpaid interest
on all the Notes to be due and payable. Upon such a declaration, such principal
and interest shall be due and payable immediately. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of and interest on all the Notes shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
Notes may rescind any such acceleration with respect to the Notes and its
consequences.
Subject
to the provisions of the Indenture relating to the duties of the Trustee, in
case an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any rights or powers under the Indenture at the request
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable indemnity or security against any loss, liability or expense.
Except to enforce the right to receive payment of principal or interest when
due, no Holder may pursue any remedy with respect to the Indenture or the Notes
unless (i) such Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Notes have requested the Trustee in writing
to pursue the remedy, (iii) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after receipt of
the request and the offer of
B-8
security
or indemnity and (v) the Holders of a majority in principal amount of the
outstanding Notes have not given the Trustee a direction inconsistent with such
request during such 60-day period. Subject to certain restrictions, the Holders
of a majority in principal amount of the outstanding Notes are given the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or the Indenture or, subject to certain exceptions in the Indenture,
that the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability. Prior to taking any action
under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee
Dealings with the Company
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with and collect obligations owed to it by the Company or
its Affiliates and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee.
16. No
Recourse Against Others
A
director, officer, employee or stockholder, as such, of the Company or any of
the Subsidiaries shall not have any liability for any obligations of the Company
or any of the Subsidiaries under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the
Notes.
17. Authentication
This Note
shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Note.
18. 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 entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19. Governing
Law
THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
B-9
20.
CUSIP
Numbers
The
Company has caused CUSIP numbers to be printed on the Notes and has directed the
Trustee to 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 Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed
thereon.
21.
Designations
For
purposes of the 8 3/8% Indenture and the 16% Notes Indenture, this Note shall
constitute “Designated Senior Indebtedness.”
The
Company will furnish to any Holder of Notes upon written request and without
charge to the Holder a copy of the Indenture which has in it the text of this
Note.
B-10
ASSIGNMENT
FORM
To assign
this Note, fill in the form below:
I or we
assign and transfer this Note to
(Print or
type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint
agent 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 other side of this
Note.
B-11
OPTION OF
HOLDER TO ELECT PURCHASE
If you
want to elect to have this Note purchased by the Company pursuant to
Section 4.09 (Change of Control) or Section 4.10 (Application of
Excess Proceeds from Sale of Assets) of the Indenture, check the
box:
|
o |
o |
|
Limitation
on Sales of Assets
and
Subsidiary Stock |
Change
of Control |
Limitation
on Sales of Assets and Subsidiary Stock
Change of Control If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.09 or
4.10 of the
Indenture, state the principal amount ($1,000 or a multiple
thereof):
$
Date:
__________________ Your Signature: __________________
(Sign
exactly as your name appears on the other side of the Note)
Signature
Guarantee:___________________________________________________________
Signature
must be guaranteed by a participant in a recognized signature
guaranty
medallion program or other signature guarantor acceptable to the
Trustee
B-12
EXHIBIT
C
FORM OF
SUPPLEMENTAL GUARANTEE
SUPPLEMENTAL
GUARANTEE (this “Supplemental Guarantee”), dated as of _______________, between
____________________ (the “New Guarantor”), a direct or indirect subsidiary of
Cincinnati Bell Inc. (or its successor), an Ohio corporation (the “Company”),
and The Bank of New York, as trustee (the “Trustee”).
W I T N E
S S E T H :
WHEREAS,
the Company and the Subsidiaries listed on the signature pages thereof have each
heretofore executed and delivered to the Trustee an Indenture (the “Indenture”),
dated as of February 16, 2005, providing for the issuance by the Company of
its 7% Senior Notes due 2015 (the “Notes”); and
WHEREAS,
Section 10.04 of the Indenture provides that under certain circumstances
the Company is required to cause the Guarantor to execute and deliver to the
Trustee for the benefit of the Holders a supplemental agreement pursuant to
which the Guarantor shall unconditionally guarantee all of the Company’s
obligations under the Notes pursuant to a Guarantee on the terms and conditions
set forth herein;
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor
covenants and agrees for the equal and ratable benefit of the Holders of the
Notes as follows:
1. CAPITALIZED
TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the
Indenture.
2. AGREEMENT
TO GUARANTEE; REGISTRATION RIGHTS AGREEMENT. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors, to
unconditionally guarantee the Company’s obligations under the Notes on the terms
and subject to the conditions set forth in Article 10 of the Indenture and
to be bound by all other applicable provisions of the Indenture. The New
Guarantor further agrees to become a party to the Registration Rights Agreement
and to be bound by all provisions thereof.
3. RATIFICATION
OF SUPPLEMENTAL GUARANTEE; SUPPLEMENTAL GUARANTEES PART OF INDENTURE. Except as
expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Supplemental Guarantee shall form a part of the Indenture for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby.
4. NO
RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or
stockholder of the New Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Notes, any Guarantee, the
Indenture or this
C-1
Supplemental
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Securities and Exchange Commission that such a waiver is against public
policy.
5. EFFECTIVENESS.
This Supplemental Guarantee shall be effective upon execution by the parties
hereto.
6. RECITALS.
The recitals contained herein shall be taken as the statements of the Company
and the Guarantors; the Trustee assumes no responsibility for their
correctness.
7. NEW
YORK LAW TO GOVERN. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. TRUSTEE
MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Guarantee.
9. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental Guarantee. Each
signed copy shall be an original, but all of them together represent the same
agreement.
10. EFFECT OF
HEADINGS. The Section headings herein are for convenience only and shall
not affect the construction hereof.
| [New Guarantor] | ||
| |
|
|
| By: | ||
|
Name: | ||
| Title: | ||
C-2
EXHIBIT
D
FORM OF
NOTATION OF GUARANTEE
The
undersigned have guaranteed this Note on a senior basis as provided in the
Indenture.
| [GUARANTOR] | ||
| |
|
|
| By: | ||
|
Name: | ||
| Title: | ||
