EXHIBIT 10.1
EQUINIX, INC.
$200,000,000
13% SENIOR NOTES DUE 2007
INDENTURE
Dated as of December 1, 1999
State Street Bank and Trust Company of California, N.A.,
as Trustee
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................................... 1
SECTION 1.02. Other Definitions............................................................... 19
SECTION 1.03. Trust Indenture Act Definitions................................................. 20
SECTION 1.04. Rules of Construction........................................................... 20
ARTICLE 2 THE NOTES
SECTION 2.01. Form and Dating................................................................. 21
SECTION 2.02. Execution and Authentication.................................................... 22
SECTION 2.03. Registrar and Paying Agent...................................................... 23
SECTION 2.04. Paying Agent to Hold Money in Trust............................................. 23
SECTION 2.05. Holder Lists.................................................................... 23
SECTION 2.06. Transfer and Exchange........................................................... 24
SECTION 2.07. Replacement Notes............................................................... 36
SECTION 2.08. Outstanding Notes.............................................................. 37
SECTION 2.09. Treasury Notes.................................................................. 37
SECTION 2.10. Temporary Notes................................................................. 38
SECTION 2.11. Cancellation.................................................................... 38
SECTION 2.12. Defaulted Interest.............................................................. 38
SECTION 2.13. Cusip Numbers................................................................... 39
ARTICLE 3 REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee.............................................................. 39
SECTION 3.02. Selection of Notes to Be Redeemed............................................... 39
SECTION 3.03. Notice of Redemption............................................................ 39
SECTION 3.04. Effect of Notice of Redemption.................................................. 40
SECTION 3.05. Deposit of Redemption Price..................................................... 40
SECTION 3.06. Notes Redeemed in Part.......................................................... 41
SECTION 3.07. Optional Redemption............................................................. 41
SECTION 3.08. Mandatory Redemption............................................................ 41
SECTION 3.09. Offer to Purchase by Application of Excess Proceeds............................. 41
ARTICLE 4 COVENANTS
SECTION 4.01. Payment of Notes................................................................ 43
SECTION 4.02. Maintenance of Office or Agency................................................. 44
SECTION 4.03. Reports......................................................................... 44
SECTION 4.04. Compliance Certificate.......................................................... 44
SECTION 4.05. Taxes........................................................................... 45
SECTION 4.06. Stay, Extension and Usury Laws.................................................. 46
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SECTION 4.07. Restricted Payments........................................................................... 46
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries..................... 49
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................................... 51
SECTION 4.10. Asset Sales................................................................................... 53
SECTION 4.11. Transactions with Affiliates.................................................................. 54
SECTION 4.12. Liens......................................................................................... 56
SECTION 4.13. Corporate Existence........................................................................... 56
SECTION 4.14. Change of Control............................................................................. 56
SECTION 4.15. Business Activities........................................................................... 57
SECTION 4.16. Payments for Consent.......................................................................... 57
SECTION 4.17. Money for Payments to Be Held in Trust........................................................ 57
SECTION 4.18. Status as Investment Company.................................................................. 59
ARTICLE 5 SUCCESSORS
SECTION 5.01. Merger, Consolidation or Sale of Assets....................................................... 59
SECTION 5.02. Successor Corporation Substituted............................................................. 60
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default............................................................................. 60
SECTION 6.02. Acceleration.................................................................................. 62
SECTION 6.03. Other Remedies................................................................................ 62
SECTION 6.04. Waiver of Past Defaults....................................................................... 62
SECTION 6.05. Control by Majority........................................................................... 63
SECTION 6.06. Limitation on Suits........................................................................... 63
SECTION 6.07. Rights of Holders of Notes to Receive Payment................................................. 63
SECTION 6.08. Collection Suit by Trustee.................................................................... 64
SECTION 6.09. Trustee May File Proofs of Claim.............................................................. 64
SECTION 6.10. Priorities.................................................................................... 64
SECTION 6.11. Undertaking for Costs......................................................................... 65
ARTICLE 7 TRUSTEE
SECTION 7.01. Duties of Trustee............................................................................. 65
SECTION 7.02. Rights of Trustee............................................................................. 66
SECTION 7.03. Individual Rights of Trustee.................................................................. 67
SECTION 7.04. Trustee's Disclaimer.......................................................................... 67
SECTION 7.05. Notice of Defaults............................................................................ 68
SECTION 7.06. Reports by Trustee to Holders of the Notes.................................................... 68
SECTION 7.07. Compensation and Indemnity.................................................................... 68
SECTION 7.08. Replacement of Trustee........................................................................ 69
SECTION 7.09. Successor Trustee by Merger, Etc.............................................................. 70
SECTION 7.10. Eligibility; Disqualification................................................................. 70
SECTION 7.11. Preferential Collection of Claims Against Company............................................. 70
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ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...................................... 71
SECTION 8.02. Legal Defeasance and Discharge................................................................ 71
SECTION 8.03. Covenant Defeasance........................................................................... 71
SECTION 8.04. Conditions to Legal or Covenant Defeasance.................................................... 72
SECTION 8.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions. 73
SECTION 8.06. Repayment to Company.......................................................................... 73
SECTION 8.07. Reinstatement................................................................................. 74
SECTION 8.08. Survival...................................................................................... 74
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders.................................................................... 74
SECTION 9.02. With Consent of Holders....................................................................... 75
SECTION 9.03. Compliance with Trust Indenture Act........................................................... 76
SECTION 9.04. Revocation and Effect of Consents............................................................. 76
SECTION 9.05. Notation on or Exchange of Notes.............................................................. 77
SECTION 9.06. Trustee to Sign Amendments, Etc............................................................... 77
ARTICLE 10 SATISFACTION AND DISCHARGE
SECTION 10.01. Satisfaction and Discharge of Indenture....................................................... 77
SECTION 10.02. Application of Trust Money.................................................................... 78
ARTICLE 11 SECURITY
SECTION 11.01. Security...................................................................................... 78
ARTICLE 12 MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.................................................................. 80
SECTION 12.02. Notices....................................................................................... 80
SECTION 12.03. Communication by Holders with Other Holders................................................... 82
SECTION 12.04. Certificate and Opinion as to Conditions Precedent............................................ 82
SECTION 12.05. Statements Required in Certificate or Opinion................................................. 82
SECTION 12.06. Rules by Trustee and Agents................................................................... 83
SECTION 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders...................... 83
SECTION 12.08. GOVERNING LAW................................................................................. 83
SECTION 12.09. Consent to Jurisdiction and Service........................................................... 83
SECTION 12.10. No Adverse Interpretation of Other Agreements................................................. 84
SECTION 12.11. Successors.................................................................................... 84
SECTION 12.12. Severability.................................................................................. 84
SECTION 12.13. Counterpart Originals......................................................................... 84
SECTION 12.14. Table of Contents, Headings, Etc.............................................................. 84
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EXHIBIT A-1 FORM OF NOTE.................................................................................. A-1-1
EXHIBIT A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE.................................................... A-2-1
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER............................................................... B-1
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE............................................................... C-1
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INDENTURE, dated as of December 1, 1999 by and between Equinix, Inc.,
a Delaware corporation (the "Company"), and State Street Bank and Trust Company
of California, N.A., a national banking association, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of 13% Senior
Notes due 2007 (the "Notes"; such term to include the Exchange Notes, the
Private Exchange Notes, if any, and the Unrestricted Definitive and Global
Notes, if any, treated as a single class of securities under this Indenture), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary have been done to make the Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of each of the Company and the Trustee in accordance with the terms
hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1 Definitions.
"144A Global Note" means a global note in the form of Exhibit A-1
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hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
aggregate principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" or "Acquired Preferred Stock" means, with respect to
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any specified Person, Indebtedness or Preferred Stock of any other Person
existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person (including by Designation or Revocation),
provided such Indebtedness or Preferred Stock is not incurred in connection
with, or in contemplation of, such other Person merging with or into or becoming
a Subsidiary of such specified Person.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Applicable Procedures" means, with respect to any transfer or
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exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear or CEDEL Bank that apply to such
transfer or exchange.
"Asset Acquisition" means (i) any capital contribution (by means of
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transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Capital Stock of any other Person by the Company or any Restricted Subsidiary,
in either case pursuant to which such Person shall (a) become a Restricted
Subsidiary or (b) be merged with or into the Company or any Restricted
Subsidiary, or (ii) any acquisition by the Company or any Restricted Subsidiary
of the assets of any Person which constitute substantially all of an operating
unit or line of business of such Person or which is otherwise outside of the
ordinary course of business.
"Asset Sale" means (i) the sale, lease, transfer, conveyance or other
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disposition of any property, asset or right (including, without limitation, by
way of a sale and leaseback), other than leases of space in an Exchange Facility
entered into in the ordinary course of business, of the Company or any
Restricted Subsidiary, and (ii) the issue or sale by the Company or any of the
Restricted Subsidiaries of Equity Interests of any Subsidiary. Notwithstanding
the foregoing, the following items shall not be deemed to be Asset Sales: (i)
any disposition of properties and assets of the Company subject to Section 5.01,
provided that any properties, assets or rights that are not included in any such
dispositions shall be deemed to have been sold in a transaction constituting an
Asset Sale, (ii) a transfer of properties, assets or rights by the Company to a
Restricted Subsidiary or by a Subsidiary to the Company or to a Restricted
Subsidiary, (iii) a disposition of obsolete or worn out equipment or equipment
that is no longer useful in the conduct of a Permitted Business of the Company
and the Restricted Subsidiaries, (iv) the surrender or waiver by the Company or
any of the Restricted Subsidiaries of contract rights or the settlement, release
or surrender of contract, tort or other claims of any kind by the Company or any
of the Restricted Subsidiaries or the grant by the Company or any of the
Restricted Subsidiaries of a Lien not prohibited by this Indenture, and (v)
sales, transfers, assignments and other dispositions of assets (or related
assets in related transactions) (x) in the ordinary course of business, (y) with
an aggregate fair market value of less than $500,000 in any fiscal year or (z)
constituting the incurrence of a Capital Lease Obligation.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
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state law for the relief of debtors.
"Board of Directors" means the board of directors or other governing
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body of the Company or, if the Company is owned or managed by a single entity,
the board of directors or other governing body of such entity, or, in either
case, any committee thereof duly authorized to act on behalf of such board or
governing body.
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"Board Resolution" means a duly authorized resolution of the Board of
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Directors.
"Business Day" means any day other than a Legal Holiday.
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"Capital Contribution" means any contribution to the common equity of
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the Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of common stock with no redemption rights
and no special preferences, privileges or voting rights is given.
"Capital Lease Obligation" means, at the time any determination
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thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
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stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
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issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of $500
million and a Thompson Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (ii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or Standard & Poor's Ratings Group and in each case maturing
within six months after the date of acquisition and (vi) money market funds at
least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (i)-(v) of this definition, provided that with respect to
any Foreign Subsidiary, Cash Equivalents shall also mean those investments that
are comparable to clauses (i) through (vi) above in such Foreign Subsidiary's
country of organization or country where it conducts business operations.
"CEDEL Bank" means CEDEL Bank, SA.
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"Change of Control" means the occurrence of any of the following: (i)
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any "person" or "group," other than a Permitted Holder, is or becomes the
"beneficial owner" (as such terms are used in Section 13(d)(3) of the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 35% or more of the Voting Stock (measured by voting power rather
than number of shares) of the Company and the Permitted Holders own, in the
aggregate, a lesser percentage of
3
the total Voting Stock (measured by voting power rather than by number of
shares) of the Company than such Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors, (ii) during any period of two consecutive
years, Continuing Directors cease for any reason to constitute a majority of the
Board of Directors, (iii) the Company consolidates or merges with or into any
other Person or the Company and/or any Restricted Subsidiaries sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of the
assets and properties of the Company and the Restricted Subsidiaries on a
consolidated basis to any other Person, other than a Permitted Holder, other
than a consolidation or merger or disposition of assets (a) of or by the Company
into or to a Wholly Owned Restricted Subsidiary of the Company or (b) subject to
clause (i) above, pursuant to a transaction in which the outstanding Voting
Stock of the Company is changed into or exchanged for securities or other
property with the effect that the beneficial owners of the outstanding Voting
Stock of the Company immediately prior to such transaction, beneficially own,
directly or indirectly, at least a majority of the Voting Stock (measured by
voting power rather than number of shares) of the surviving corporation or the
Person to whom the Company's assets are transferred immediately following such
transaction, or (iv) the adoption of a plan relating to the liquidation or
dissolution of the Company.
"Commission" means the Securities and Exchange Commission.
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"Company" means Equinix, Inc., a Delaware corporation, and all
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successors thereto.
"Consolidated Capital Ratio" means, with respect to the Company as of
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any date, the ratio of (i) the aggregate amount of Indebtedness of the Company
and the Restricted Subsidiaries then outstanding to (ii) the Consolidated Equity
Capital of the Company and the Restricted Subsidiaries as of such date. For the
purposes of calculating the "Consolidated Capital Ratio" (i) any Subsidiary of
the Company that is a Restricted Subsidiary on the Transaction Date shall be
deemed to have been a Restricted Subsidiary at the end of the most recently
ended fiscal quarter (the "Reference Date") and (ii) any Subsidiary of the
Company that is not a Restricted Subsidiary on the Transaction Date shall be
deemed not to have been a Restricted Subsidiary on the Reference Date. In
addition to, and without limiting, the foregoing, for the purposes of the
foregoing, "Consolidated Equity Capital" shall be calculated after giving effect
on a pro forma basis as of the Reference Date to, without duplication, (i) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as the result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Debt) occurring during the
period commencing on the Reference Date to and including the Transaction Date,
as if such Asset Sale or Asset Acquisition occurred on the Reference Date, (ii)
any issue or sale of Equity Interests (other than Disqualified Stock but
including Equity Interests (other than Disqualified Stock) issued upon the
exercise of options, warrants or rights to purchase such Equity Interests) of
the Company or any conversion of Disqualified Stock or debt securities of the
Company into Equity Interests (other than Disqualified Stock) occurring during
the period commencing on the Reference Date to and including the Transaction
Date, as if such issue, sale or conversion occurred on the Reference Date, and
(iii) any Restricted Payments made by the Company, and any sale, disposition or
repayment of any Restricted Investment constituting a Restricted
4
Payment, since the Reference Date to and including the Transaction Date, as if
such Restricted Payment occurred on the Reference Date.
"Consolidated Cash Flow" means, with respect to the Company for any
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period, the Consolidated Net Income of the Company and the Restricted
Subsidiaries for such period plus (A) to the extent that any of the following
items were deducted in computing such Consolidated Net Income, but without
duplication, (i) provision for taxes based on income or profits of the Company
and the Restricted Subsidiaries for such period, plus (ii) consolidated interest
expense of the Company and the Restricted Subsidiaries for such period, whether
paid or accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), plus (iii) depreciation, amortization
(including amortization of goodwill and other intangibles, but excluding
amortization of prepaid cash expenses that were paid in a prior period), and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of the
Company and the Restricted Subsidiaries for such period, minus (B) non-cash
items increasing such Consolidated Net Income for such period (other than items
that were accrued in the ordinary course of business), in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company only to the extent that a corresponding
amount would be permitted at the date of determination to be dividended or
otherwise distributed to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Equity Capital" means, with respect to the Company as of
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any date, the sum (without duplication) of (i) the additional paid-in capital of
the common stockholders reflected on the consolidated balance sheet of the
Company and the Restricted Subsidiaries as of such date plus (ii) the respective
amounts reported on the Company's balance sheet as of such date with respect to
any series of Capital Stock (other than Disqualified Stock) not included in
clause (i) above, less (iii) (x) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such business)
subsequent to the Issue Date in the book value of any asset owned by the Company
or a Restricted Subsidiary, (y) all outstanding net Investments as of such date
in Persons that are not Restricted Subsidiaries (without giving effect to any
write-down or write-off thereof) and (z) the aggregate amount of all Restricted
Payments declared or made on or after the Issue Date other than (I) Investments
in Persons that are not Restricted Subsidiaries and (II) Restricted Payments
made pursuant to Section 4.07(B)(iii).
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"Consolidated Leverage Ratio" means, with respect to the Company, as
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of any date, the ratio of (i) the aggregate consolidated amount of Indebtedness
of the Company and the Restricted Subsidiaries then outstanding to (ii) the
annualized Consolidated Cash Flow of the Company and the Restricted Subsidiaries
for the most recently ended fiscal quarter. For purposes of calculating
"Consolidated Cash Flow" for any fiscal quarter for purposes of this definition
(i) any Subsidiary of the Company that is a Restricted Subsidiary on the
Transaction Date shall be deemed to have been a Restricted Subsidiary at all
times during such fiscal quarter and (ii) any Subsidiary of the Company that is
not a Restricted Subsidiary on the Transaction Date shall be deemed not to have
been a Restricted Subsidiary at any time during such fiscal quarter. In
addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated Cash Flow" shall be calculated after giving effect on
a pro forma basis for the applicable fiscal quarter to, without duplication, any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Debt) occurring during the
period commencing on the first day of such fiscal quarter to and including the
Transaction Date, as if such Asset Sale or Asset Acquisition occurred on the
first day of such fiscal quarter.
"Consolidated Net Income" means, with respect to the Company for any
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period, the aggregate of the Net Income of the Company and the Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the Company
or a Restricted Subsidiary thereof by such Person but not in excess of the
Company's Equity Interests in such Person, (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, except that the Company's equity in
the net income of any such Restricted Subsidiary for such period may be included
in such Consolidated Net Income (A) up to the aggregate amount of cash that
could have been distributed by such Restricted Subsidiary during such period to
the Company as a dividend and (B) if the only restriction on the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary is a
restriction of the type described in Section 4.08(B)(b), (iii) the Net Income of
any Person acquired in a pooling of interests transaction for any period prior
to the date of such acquisition shall be excluded, (iv) the equity of the
Company or any Restricted Subsidiary in the Net Income (if positive) of any
Unrestricted Subsidiary shall be included in such Consolidated Net Income up to
the aggregate amount of cash actually distributed by such Unrestricted
Subsidiary during such period to the Company or such Restricted Subsidiary as a
dividend or other distribution (but not in excess of the amount of the Net
Income of such Unrestricted Subsidiary for such period), (v) the cumulative
effect of a change in accounting principles shall be excluded, (vi) all
extraordinary, unusual or nonrecurring gains or losses (net of fees and expenses
relating to the transaction giving rise thereto) shall be excluded, (vii) any
gain or loss, net of taxes, realized upon the termination of any employee
pension benefit plan shall be excluded, and (viii) gains or losses in
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respect of any Asset Sales (net of fees and expenses relating to the transaction
giving rise thereto) shall be excluded.
"Consolidated Tangible Assets" of the Company as of any date means the
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total amount of assets of the Company and the Restricted Subsidiaries (less
applicable reserves) on a consolidated basis at the end of the fiscal quarter
immediately preceding such date, as determined in accordance with GAAP, less:
(i) unamortized debt and debt issuance expenses, deferred charges, goodwill,
patents, trademarks, copyrights, and all other items which would be treated as
intangibles on the consolidated balance sheet of the Company and the Restricted
Subsidiaries prepared in accordance with GAAP and (ii) appropriate adjustments
on account of minority interests of other Persons holding equity investments in
Restricted Subsidiaries, in the case of each of clauses (i) and (ii) above, as
reflected on the consolidated balance sheet of the Company and the Restricted
Subsidiaries.
"Continuing Directors" means individuals who at the beginning of the
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period of determination constituted the Board of Directors, together with any
new directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company was approved by a vote of a majority
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 or is the designee of any one of the Permitted Holders or
any combination thereof or was nominated or elected by any such Permitted
Holder(s) or any of their designees.
"Corporate Trust Office of the Trustee" shall be at the address of the
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Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Cumulative Consolidated Cash Flow" means, as of any date of
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determination, the cumulative Consolidated Cash Flow realized during the period
commencing on the first day of the fiscal quarter which includes the Issue Date
and ending on the last day of the last fiscal quarter for which reports have
been filed with the Commission or provided to the Trustee pursuant to Section
4.03 preceding the date of the event requiring such calculation to be made.
"Currency Agreement" means, with respect to any Person, any foreign
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exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or beneficiary.
"Default" means any event that is, or with the passage of time or the
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giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
---------------
the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A-1 hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, but may bear the Private Placement Legend, if
applicable.
"Depositary" means, with respect to the Notes issuable or issued in
----------
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to
7
the Notes, and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this Indenture.
"Disqualified Stock" means any Equity Interest that, by its terms (or
------------------
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature; provided, however, that any Equity Interest that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Equity Interest upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Equity Interest provide that the Company
may not repurchase or redeem such Equity Interest pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07.
"Equity Interests" means Capital Stock and all warrants, options or
----------------
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Escrow Account" means an account established with the Escrow Agent by
--------------
the Trustee pursuant to the terms of the Escrow Agreement.
"Escrow Agent" means State Street Bank and Trust Company of
------------
California, N.A., in its capacity as escrow agent pursuant to the Escrow
Agreement.
"Escrow Agreement" means the Escrow Agreement, dated as of the Issue
----------------
Date, by and among the Company, the Trustee and the Escrow Agent, governing the
disbursement of funds from the Escrow Account, as the same may be amended,
modified or supplemented from time to time.
"Escrow Collateral" means the Escrow Account and assets held therein
-----------------
pledged pursuant to the Escrow Agreement.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
together with the rules and regulations promulgated thereunder.
"Exchange Facility" means a facility providing equipment colocation,
-----------------
direct high-speed connections, switched interconnections and related services to
third party internet related businesses and operations.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
--------------
to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
--------------
Agreement.
8
"Exchange Offer Registration Statement" has the meaning set forth in
-------------------------------------
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and the
---------------------
Restricted Subsidiaries in existence on the Issue Date, until such amounts are
repaid.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
------------------
which (i) is not organized under the laws of the United States, any state
thereof or the District of Columbia, and (ii) conducts substantially all of its
business operations outside the United States of America.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Note Legend" means the legend set forth in Section
------------------
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
------------
Restricted Global Notes and the unrestricted Global Notes, in the form of
Exhibit A-1 or A-2 hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof and bearing the Global Note Legend.
"Government Securities" means securities that are (a) direct
---------------------
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentally thereof) the payment of which the full faith and credit of the
United States of America is pledged, (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or (c) obligations of a Person
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness of any other Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" means, with respect to any Person, the
-------------------
obligations of such Person under any Interest Rate Agreement or Currency
Agreement.
9
"Holder" means a Person in whose name a Note is registered on the
------
Registrar's or any co-registrar's books.
"Indebtedness" means, with respect to any Person, any indebtedness of
------------
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance of the deferred and
unpaid purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing (other than letters of credit (or
reimbursement agreements in respect thereof), banker's acceptances and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person), Disqualified Stock of such Person and Preferred Stock
of such Person's Restricted Subsidiaries and, to the extent not otherwise
included, the Guarantee by such Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, but the accretion of original issue discount in accordance with
the original terms of Indebtedness issued with an original issue discount will
not be deemed to be an incurrence, or (ii) the principal amount thereof,
together with any interest thereon that is more than 30 days past due, in the
case of any other Indebtedness. Notwithstanding the foregoing, money borrowed
and set aside at the time of the incurrence of any Indebtedness in order to
prefund the payment of interest on such Indebtedness shall not be deemed to be
"Indebtedness" so long as such money is held to secure the payment of such
interest.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time.
"Indirect Participant" means a Person who holds a beneficial interest
--------------------
in a Global Note through a Participant.
"Initial Purchaser" shall have the meaning assigned to such term in
-----------------
the Offering Memorandum.
"interest," when used with respect to any Note, means the amount of
--------
all interest accruing on such Note, including Liquidated Damages payable on the
Notes pursuant to the Registration Rights Agreement and all interest accruing
subsequent to the occurrence of any events specified in Sections 6.01(viii) and
(ix) hereof or which would have accrued but for any such event, whether or not
such claims are allowable under applicable law.
"Interest Payment Date" shall have the meaning assigned to such term
---------------------
in the Notes.
"Interest Rate Agreement" means, with respect to any Person, any
-----------------------
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or
beneficiary.
10
"Investments" means, with respect to any Person, all investments by
-----------
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to directors, officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any of the Restricted Subsidiaries sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Restricted Subsidiary not sold or disposed
of in an amount determined as provided in Section 4.07(E).
"Issue Date" means the date of first issuance of the Notes under the
----------
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
-------------
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
---------------------
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in, and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" shall have the meaning specified in the Notes.
------------------
"Net Cash Proceeds" means the aggregate amount of cash or Cash
-----------------
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Capital Stock and by the Company and the Restricted
Subsidiaries in respect of an Asset Sale plus, in the case of an issuance of
Capital Stock upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of cash
originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and reasonable and
customary expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in connection
with such Asset Sale or sale of Capital Stock, and, in the case of an Asset Sale
only, less the amount (estimated reasonably and in good faith by the Company) of
income, franchise, sales and other applicable
11
federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability by the Company or any of its respective Restricted
Subsidiaries in connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss carryovers,
tax credits and tax credit carryforwards, and similar tax attributes.
"Net Income" means, with respect to any Person, the net income (loss)
----------
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale or (b) the disposition of
any securities by such Person or any of the Restricted Subsidiaries and (ii) any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
"Newly Raised Capital" means funds raised by the Company and the
--------------------
Restricted Subsidiaries after the Issue Date.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
-----------------
Company nor an Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
---------------
"Note Custodian" means the Person specified in Section 2.03 hereof as
--------------
the Note Custodian with respect to the Global Notes or any successor entity
thereto appointed as Note Custodian hereunder and having become such pursuant to
the applicable provision of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
-----
Indenture.
"Offering Memorandum" means the offering memorandum of the Company,
-------------------
dated November 24, 1999, relating to the units consisting of the Notes and the
warrants.
"Officer" means the President, the Chief Executive Officer, the Chief
-------
Financial Officer and any vice president of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
---------------------
"Opinion of Counsel" means an opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee and that meets the requirements of Section
12.05 hereof. The counsel
12
may be an employee of or counsel to the Company, any Subsidiary of the Company,
any Affiliate of the Company or the Trustee.
"pari passu Indebtedness" means Indebtedness of the Company ranking
-----------------------
pari passu in right of payment with the Notes.
"Participant" means members of, or participants in, the Depositary.
-----------
"Participating Broker-Dealer" has the meaning set forth in the
---------------------------
Registration Rights Agreement.
"Permitted Business" means the business of designing, constructing,
------------------
owning, operating and leasing space within Exchange Facilities together with any
other activity reasonably related thereto.
"Permitted Credit Facility" means any senior commercial term loan
-------------------------
and/or revolving credit facility (including any letter of credit subfacility)
entered into principally with commercial banks and/or other Persons typically
party to commercial loan agreements.
"Permitted Foreign Credit Facility" means any senior commercial term
---------------------------------
loan and/or revolving credit facility (including any letter of credit
subfacility) entered into principally with commercial banks and/or other Persons
typically party to commercial loan agreements having only Foreign Subsidiaries
as obligors thereunder; provided that the Company may be a guarantor of any such
Permitted Foreign Credit Facility.
"Permitted Holder" means Benchmark Capital Partners II, L.P., Cisco
----------------
Systems, Inc., Microsoft Corporation, News Corp., Albert M. Avery, IV, Jay S.
Adelson and their respective Related Persons.
"Permitted Investments" means (a) any Investment in the Company or in
---------------------
a Restricted Subsidiary of the Company that is engaged entirely or substantially
entirely in a Permitted Business; (b) any Investment in Cash Equivalents; (c)
any Investment by the Company or any of the Restricted Subsidiaries in a Person,
if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Company that is engaged entirely or substantially entirely in
a Permitted Business or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is
engaged entirely or substantially entirely in a Permitted Business; (d) loans or
advances to employees of the Company or any Restricted Subsidiary in an amount
not to exceed $5 million at any time outstanding; (e) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale made in
compliance with Section 4.10; and (f) Investments in securities of trade
creditors or customers received pursuant to any plan of reorganization or
similar arrangement arising out of the bankruptcy or insolvency of such trade
creditors or customers.
"Permitted Liens" means (i) Liens to secure Indebtedness (x) permitted
---------------
by Sections 4.09(b)(vi) and (vii), provided that with respect to Liens to secure
Indebtedness permitted by Section 4.09(b)(vi) or any Permitted Refinancing
Indebtedness of such Indebtedness, such Lien must cover only the assets acquired
with such Indebtedness, and (y)
13
incurred under a Permitted Credit Facility or a Permitted Foreign Credit
Facility and permitted by Section 4.09(b)(v); (ii) Liens in favor of the Company
or any Restricted Subsidiary; (iii) Liens on property of a Person existing at
the time such Person is merged with or into or consolidated with the Company or
any of the Restricted Subsidiaries, provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or such Restricted Subsidiary; (iv) Liens on property existing at the
time of acquisition thereof by the Company or any of the Restricted
Subsidiaries, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (vi)
Liens existing on the Issue Date; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) zoning restrictions, rights-of-way, easements and similar charges or
encumbrances incurred in the ordinary course which in the aggregate do not
detract from the value of the property thereof; (ix) Liens securing the Notes;
(x) Liens incurred in the ordinary course of business of the Company or any of
the Restricted Subsidiaries with respect to obligations that do not exceed 5% of
the Company's Consolidated Tangible Assets at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary; and (xi) Liens securing money
borrowed (or any securities purchased therewith) which is (or are, in the case
of securities) set aside at the time of the incurrence of any Indebtedness
permitted to be incurred under Section 4.09 in order to prefund the payment of
interest on such Indebtedness.
"Permitted Recourse Debt" means Indebtedness as to which the Company
-----------------------
is contingently liable as a guarantor or indemnitor or as to which the Company
has agreed to otherwise provide credit support, in any such case to the extent
that the maximum possible liability of the Company in respect of any such
Indebtedness, at the time of its incurrence by the Company is permitted to be
incurred as Permitted Indebtedness pursuant to clause (iv) of the definition
thereof.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
----------------------------------
Company or any of the Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of the Restricted Subsidiaries
(other than Indebtedness incurred pursuant to clause (iii), (iv), (vii) or
(viii) of the definition of Permitted Indebtedness); provided that: (i) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus accrued interest on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of any
premium required to be paid in connection with such refinancing pursuant to the
terms of such Indebtedness or otherwise reasonably determined by the Company to
be necessary and reasonable expenses incurred in connection therewith); (ii)
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted
14
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness is expressly 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 extended,
refinanced, renewed, replaced, defeased or refunded; (iv) if such Permitted
Refinancing Indebtedness refinances Indebtedness of a Restricted Subsidiary,
such Permitted Refinancing Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (v) such Permitted
Refinancing Indebtedness is secured only by the assets, if any, that secured the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint
------
venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Preferred Stock" means any Equity Interest of any class or classes of
---------------
a Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Equity Interests
of any other class of such Person.
"Private Exchange Notes" shall have the meaning specified in the
----------------------
Registration Rights Agreement.
"Private Placement Legend" means the legend set forth in Section
------------------------
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Purchase Money Indebtedness" means Indebtedness (including Acquired
---------------------------
Debt, in the case of Capital Lease Obligations, mortgage financings and purchase
money obligations) incurred for the purpose of financing all or any part of the
cost of the engineering, construction, installation, importation, acquisition,
lease, development or improvement of any assets used by the Company or any
Restricted Subsidiary in a Permitted Business, including any related notes,
Guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, supplemented, modified or
restated from time to time. The Company in its sole discretion shall determine
whether any item of Indebtedness or portion thereof meeting the foregoing
criteria shall be classified as Purchase Money Indebtedness for the purposes of
Secton 4.09.
"Qualified Consideration" means all assets, rights (contractual or
-----------------------
otherwise) and properties, whether tangible or intangible, used or intended for
use in a Permitted Business and the Equity Interests of a Person engaged
entirely or substantially entirely in a Permitted Business.
"QIB" means a "qualified institutional buyer," as defined in Rule
---
144A.
15
"Record Date" for the interest payable on any Interest Payment Date
-----------
means the May 15 or November 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of the date hereof, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Registration Statement" means either the Exchange Offer Registration
----------------------
Statement or the Shelf Registration Statement.
"Regulation S" means Regulation S promulgated under the Securities
------------
Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
------------------------
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
----------------------------------
the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding aggregate principal amount of the Regulation S Temporary Global Note
upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in
----------------------------------
the form of Exhibit A-2 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding aggregate principal amount of the Notes initially sold in reliance
on Rule 903 of Regulation S.
"Related Person" means any Person who controls, is controlled by or is
--------------
under common control with a Permitted Holder; provided, that for purposes of
this definition "control" means the beneficial ownership of more than 50% of the
total voting power of a Person normally entitled to vote in the election of
directors, managers or trustees, as applicable, of a Person; provided, further,
that with respect to any natural Person, each member of such Person's immediate
family shall be deemed to be a Related Person of such Person.
"Responsible Officer," when used with respect to the Trustee, means
--------------------
any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
--------------------------
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
----------------------
Placement Legend and includes 144A Global Notes and Regulation S Global Notes.
16
"Restricted Investment" means any Investment other than a Permitted
---------------------
Investment.
"Restricted Note" means either a Restricted Definitive Note or a
---------------
Restricted Global Note.
"Restricted Period" means the 40-day distribution compliance period as
-----------------
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
---------------------
referent Person that is not an Unrestricted Subsidiary. Unless the context
specifically requires otherwise, Restricted Subsidiary includes a direct or
indirect Restricted Subsidiary of the Company.
"Rule 144" means Rule 144 promulgated under the Securities Act.
--------
"Rule 144A" means Rule 144A promulgated under the Securities Act.
---------
"Rule 903" means Rule 903 promulgated under the Securities Act.
--------
"Rule 904" means Rule 904 promulgated under the Securities Act.
--------
"Securities Act" means the Securities Act of 1933, as amended (or any
--------------
successor Act), and the rules and regulations promulgated thereunder (or
respective successor thereto).
"Senior Debt" means all Indebtedness of the Company which is not
-----------
expressly by its terms, subordinate or junior in right of payment to the Notes.
"Shelf Registration Statement" means the Shelf Registration Statement
----------------------------
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be
----------------------
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date.
"Special Record Date" for the payment of any defaulted interest means
-------------------
a date fixed by the Trustee pursuant to Section 2.12 hereof.
"Stated Maturity" means, with respect to any installment of interest
---------------
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Indebtedness" means Indebtedness of the Company that is
-------------------------
subordinated in right of payment by its terms or the terms of any document or
instrument or instrument relating thereto to the Notes, in any respect.
"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
17
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 one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
---
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA, except as set forth in Section 9.03.
"Transaction Date" means the date of the transaction giving rise to
----------------
the need to calculate the Consolidated Leverage Ratio or the Consolidated
Capital Ratio, as the case may be.
"Trustee" means the party named as such above until a successor
-------
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that
----------------------------
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note in the form
------------------------
of Exhibit A-1 attached hereto that bears the Global Note Legend and that has
the "Schedule of Exchanges of Interests in the Global Note" attached thereto,
and that is deposited with or on behalf of and registered in the name of the
Depositary, representing Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
-----------------------
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary at the time
of such designation: (a) has no Indebtedness other than Non-Recourse Debt and
Permitted Recourse Debt; (b) is a Person with respect to which neither the
Company nor any of the Restricted Subsidiaries has any direct or indirect
obligation to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (c) has
not Guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of the Restricted Subsidiaries. Any such
designation by the Board of Directors shall be evidenced by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07. The
Board of Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under Section
4.09, calculated on a pro forma basis as if such designation had occurred at the
beginning of the applicable reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
18
"U.S. Government Securities" means securities that are direct
--------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
-----------
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
------------
such Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
----------------------------------
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.2 Other Definitions.
-----------------
Defined
Term in Section
---- ----------
"Affiliate Transaction"........................................... 4.11
"Asset Sale Offer"................................................ 4.10
"Authentication Order"............................................ 2.02
"Change of Control Offer"......................................... 4.14
"Change of Control Payment"....................................... 4.14
"Change of Control Payment Date".................................. 4.14
"Costs"........................................................... 4.09
"Covenant Defeasance"............................................. 8.03
"Designation"..................................................... 4.07
"Events of Default"............................................... 6.01
"Excess Proceeds"................................................. 4.10
"incur"........................................................... 4.09
"Investment Company Act".......................................... 4.18
"Legal Defeasance"................................................ 8.02
"Offer Amount".................................................... 3.09
"Offer Period".................................................... 3.09
"Paying Agent".................................................... 2.03
"Permitted Indebtedness".......................................... 4.09
"Purchase Date"................................................... 3.09
19
"Reference Date".................................................. 1.01
"Registrar"....................................................... 2.03
"Registration".................................................... 4.03
"Restricted Payments"............................................. 4.07
"Revocation"...................................................... 4.07
SECTION 1.3 Trust Indenture Act Definitions
-------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used but not otherwise defined in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined
by Commission rule under the TIA have the meanings so assigned to them.
SECTION 1.4 Rules of Construction
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time;
20
(7) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(8) the words "including," "includes" and similar words
shall be deemed to be followed by "without limitation."
ARTICLE 2
THE NOTES
---------
SECTION 2.1 Form and Dating.
---------------
(a) General.
-------
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 and A-2 hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
or agreements to which the Company is subject. Each Note shall be dated the
date of its authentication. The Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes.
------------
Notes issued in global form shall be substantially in the form of
Exhibits A-1 or A-2 attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A-1 attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the aggregate principal
amount of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, repurchases and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Notes.
----------------------
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Notes, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at the Corporate Trust Office of the
21
Trustee, as custodian for the Depositary, registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or CEDEL Bank, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Upon
termination of the Restricted Period and the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and CEDEL Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Note bearing a Private Placement Legend, all as contemplated by Section
2.06(b)(iii) hereof), and (ii) an Officers' Certificate from the Company,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall, upon direction of the
Company, cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and CEDEL Bank Procedures Applicable.
----------------------------------------------
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of CEDEL Bank" and "Customer Handbook" of CEDEL Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes that are held by
Participants through Euroclear or CEDEL Bank.
SECTION 2.2 Execution and Authentication.
----------------------------
Two Officers or one Officer and the Secretary or an Assistant
Secretary of the Company shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer, Secretary or Assistant Secretary whose signature is on
a Note no longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers or one Officer and the Secretary or an Assistant Secretary of the
Company (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may
22
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders or an Affiliate of the Company.
SECTION 2.3 Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar," which term
shall also include any co-registrar) and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing
of the name and address of any Paying Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
The Trustee is authorized to enter into a letter of representations
with DTC in the form provided to the Trustee by the Company and to act in
accordance with such letter.
SECTION 2.4 Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all such money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all such money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money. If the Company or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 Holder Lists.
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other
23
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes.
-------------------------------------
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee a notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates determined by the Company to be required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
-----------------------------------------------------------------
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein and therein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
--------------------------------------------------------
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the expiration of
the Restricted Period transfers of beneficial interests in the Temporary
Regulation S Global Note may not be made to a U.S. Person or for the account or
24
benefit of a U.S. Person (other than an Initial Purchaser or to a transferee who
will take delivery of a beneficial ownership interest in a 144A Global Note
bearing a Private Placement Legend in accordance with Section 2.06(b)(iii)
hereof). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
------------------------------------------------------------
Global Notes. In connection with all transfers and exchanges of beneficial
- ------------
interests that are not subject to Section 2.06(b)(i) above, the transferor of
such beneficial interest must deliver to the Depositary either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above, provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates determined by
the Company to be required pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
------------------------------------------------------
Global Note. A beneficial interest in any Restricted Global Note may be
- -----------
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the transfer complies with the
requirements of Section 2.06(b)(ii) above and the Registrar receives the
following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the Regulation
S Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof.
25
(iv) Transfer and Exchange of Beneficial Interests in a
--------------------------------------------------
Restricted Global Note for Beneficial Interests in the Unrestricted Global
- --------------------------------------------------------------------------
Note. A beneficial interest in any Restricted Global Note may be exchanged by
- ----
any holder thereof for a beneficial interest in an Unrestricted Global Note
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in a Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, makes the certification required
by Section 5 of the Registration Rights Agreement in the applicable Letter of
Transmittal or via the Depositary's book-entry system;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (3)(c) or (4) thereof; and, in
each such case set forth in this subparagraph (D), if the Company or the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Company or the Registrar, as
applicable, to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
26
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
-----------------------------------------------------------------
(i) Beneficial Interests in Restricted Global Notes to Restricted
--- -------------------------------------------------------------
Definitive Notes. If any holder of a beneficial interest in a Restricted Global
- ----------------
Note proposes to exchange such beneficial interest for a Restricted Definitive
Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof; or
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall make available for delivery such
Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
determined by the Company to be required pursuant to Rule 903(c)(3)(ii)(B) under
the Securities
27
Act, except in the case of a transfer pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
--------------------------------------------------
Unrestricted Definitive Notes. A holder of a beneficial interest in a
- -----------------------------
Restricted Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes the certifications required by
Section 5 of the Registration Rights Agreement in the applicable Letter of
Transmittal;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of an Unrestricted Definitive Note
that does not bear the Private Placement Legend, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (3)(c) or
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company or the
Registrar so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Company or the Registrar, as
applicable, to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
----------------------------------------------------
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
- -----------------------------
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section
28
2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate
and make available for delivery to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall make available for delivery such
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
--------------------------------------------------------
Interests.
- ---------
(i) Restricted Definitive Notes to Beneficial Interests in
------------------------------------------------------
Restricted Global Notes. If any Holder of a Restricted Definitive Note
- -----------------------
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof; or
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof, upon confirmation of such receipt, the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, and in the case of clause (C) above, the Regulation S Global
Note, in each case, bearing the Private Placement Legend.
(ii) Restricted Definitive Notes to Beneficial Interests in
------------------------------------------------------
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
- -------------------------
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, makes the certification required under Section 5 of the Registration
Rights Agreement in the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
29
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(3)(c) or (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company or
Registrar so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Company or Registrar, as
applicable, to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon confirmation by the Registrar of satisfaction of the conditions
of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Note is effected pursuant to subparagraph
(ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
--------------------------------------------------------------
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder
30
or by his attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
----------------------------------------------------------
Any Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
(C) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a) thereof; or
(D) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
------------------------------------------------------------
Any Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, makes the certification required by Section 5 of the Registration
Rights Agreement in the applicable Letter of Transmittal;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
31
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in item (3)(c) or (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Company or
Registrar so requests, an opinion of counsel in form reasonably acceptable to
the Company or Registrar, as applicable, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
--------------------------------------------------------
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a
- -----
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) Exchange Offer.
--------------
Upon the consummation of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate (i) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that make the
certifications required by Section 5 of the Registration Rights Agreement in the
applicable Letters of Transmittal or via the Depositary's book-entry system, and
accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Restricted Definitive Notes tendered for acceptance by Persons that make the
certifications required by Section 5 of the Registration Rights Agreement in the
applicable Letters of Transmittal, and accepted for exchange in the Exchange
Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Persons designated by the
Holders of Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the face of all
-------
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
------------------------
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT").
32
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF
THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE AND THE LAST DATE ON WHICH THE ISSUER OR AN AFFILIATE
OF THE ISSUER WAS THE OWNER OF THE SECURITY, IN EITHER CASE OTHER THAN (1)
TO THE ISSUER, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), AND, IF SUCH TRANSFER IS BEING EFFECTED BY
CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE (AS DEFINED BELOW) PRIOR TO
THE EXPIRATION OF THE APPLICABLE "DISTRIBUTION COMPLIANCE PERIOD" (WITHIN
THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE SECURITIES ACT), A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUER OR THE TRUSTEE OR
TRANSFER AGENT IS DELIVERED BY THE TRANSFEREE TO THE ISSUER AND THE TRUSTEE
AND/OR TRANSFER AGENT, (4) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS DELIVERED BY THE
TRANSFEREE TO THE ISSUER AND THE TRUSTEE AND/OR TRANSFER AGENT, (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS. AN
"INSTITUTIONAL ACCREDITED INVESTOR" HOLDING THIS SECURITY AGREES IT WILL
FURNISH TO THE ISSUER AND THE TRUSTEE AND/OR TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES
33
WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2)
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING
THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF) RULE 902 UNDER REGULATION S UNDER
THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
------------------
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation S
-----------------------------------------
Temporary Global Note shall bear a legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, PRIOR TO THE
EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40 DAYS
AFTER THE ISSUE DATE WITH RESPECT TO THE NOTES), MAY NOT BE: OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S,
AS DEFINED IN THE SECURITIES ACT, OR (2) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE
34
144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes.
----------------------------------------------
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction, and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
------------------------------------------------------
(ii) To permit registrations of transfers and exchanges, the
Company shall, subject to the other provisions of this Section 2.06, execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the
Company's order or at the Registrar's request.
(iii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
(iv) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
35
(v) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(vi) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 Business Days before the day of the mailing of a
notice of redemption or repurchase under Section 3.02 or 4.14 hereof, as
applicable, and ending at the close of business on such day, (B) to register the
transfer of or to exchange any Note so selected for redemption or repurchase in
whole or in part, except the unredeemed portion of any Note being redeemed or
repurchased in part or (c) to register the transfer of or to exchange a Note
between a Record Date and the next succeeding Interest Payment Date.
(vii) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(viii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(ix) All certifications, certificates and opinions of counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.
(x) Each Holder agrees to indemnify the Trustee and the
Registrar against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable United States federal or state securities law.
(xi) Neither the Trustee nor the Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among Participants or beneficial owners of interests in any
Global 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.
SECTION 2.7 Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of
36
the Trustee and the Company to protect the Company, the Trustee, any Agent and
any authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto, and
may charge for its expenses (including the fees and expenses of the Trustee and
reasonable attorney's fees and expenses) in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
If any mutilated, lost, stolen or destroyed Note has become or is
about to become due and payable, the Company, in its sole discretion, may,
instead of issuing a new Note, pay such Note.
SECTION 2.8 Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser or protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.9 Treasury Notes.
--------------
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person that is an Affiliate of the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
37
SECTION 2.10 Temporary Notes.
---------------
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11 Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and 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, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12 Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent Special Record Date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such Special Record Date and payment date, provided that no such Special
Record Date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the Special Record Date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the company) shall mail or cause to be mailed to Holders a
notice that states the Special Record Date, the related payment date and the
amount of such interest to be paid. The defaulted interest shall be considered
paid upon deposit with the Trustee or the Paying Agent of an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted
interest, and interest on such defaulted interest shall thereafter cease to
accrue from that date. The Company may make payment of any defaulted interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or other trading market on which the securities of the company are
listed or traded, and upon such notice as may be required by such exchange or
trading market, if, after written notice given by the Company to the Trustee of
the proposed payment, such manner of payment shall be deemed practicable by the
Trustee.
38
SECTION 2.13 Cusip Numbers.
-------------
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notice of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the 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 the
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
-------------------------
SECTION 3.1 Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 35 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed, (iv) the redemption price and (v) the CUSIP
numbers of the Notes to be redeemed.
SECTION 3.2 Selection of Notes to Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed or purchased among the Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Company considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.3 Notice of Redemption.
--------------------
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address. The notice shall identify
the Notes to be redeemed and shall state:
39
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.4 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5 Deposit of Redemption Price.
---------------------------
Prior to 12:00 noon New York City time on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Record Date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest shall be paid to the Person in
40
whose name such Note was registered at the close of business on such Record
Date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.6 Notes Redeemed in Part.
----------------------
Upon surrender and cancellation of a Note that is redeemed in part,
the Company shall issue and, upon the Company's written, request, the Trustee
shall authenticate, for the Holder at the expense of the Company a new Note
equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.7 Optional Redemption.
--------------------
(a) The Notes will not be redeemable at the Company's option prior
to December 1, 2003. Thereafter, the Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of
Holders as of the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:
Percentage
of Principal
Year Amount
---- ------------
2003........................................... 106.500%
2004........................................... 103.250%
2005 and thereafter............................ 100.000%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.8 Mandatory Redemption.
---------------------
Except as provided in Sections 4.10 and 4.14 hereof, the Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.9 Offer to Purchase by Application of Excess Proceeds.
---------------------------------------------------
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required
41
by applicable law (the "Offer Period"). No later than five Business Days after
the termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, 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.
If the Purchase Date is on or after a Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender 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:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the aggregate
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata
42
basis (with such adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before 12:00 noon New York City time on the Purchase Date, the
Company shall, to the extent lawful, accept for payment, on a pro rata basis to
the extent necessary, the Offer Amount or portions thereof tendered pursuant to
the Asset Sale offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company, shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
---------
SECTION 4.1 Payment of Notes.
----------------
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 12:00 noon New York City time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest and Liquidated Damages, if any,
then due.
Notwithstanding anything to the contrary in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States of America from
principal or interest payments hereunder.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
43
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
SECTION 4.2 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.3 Reports.
-------
At all times from and after the date of the commencement of an
Exchange Offer or the effectiveness of a shelf registration statement with
respect to the Notes (the "Registration"), whether or not the Company is then
required to file reports with the Commission, the Company shall file with the
Commission all such reports and other information as it would be required to
file with the Commission by Sections 13(a) or 15(d) under the Exchange Act if it
were subject thereto. The Company shall supply the applicable Trustee and each
applicable Holder or shall supply to the applicable Trustee for forwarding to
each such applicable Holder, without cost to such Holder, copies of such reports
and other information. At all times prior to the date of the Registration, the
Company shall, at its cost, deliver to the Trustee and each Holder of the Notes
quarterly and annual reports substantially equivalent to those which would be
required by the Exchange Act if the Company were subject thereto. In addition,
at all times prior to the Registration, upon the request of any Holder or any
prospective purchaser of the Notes designated by a Holder, the Company shall
supply to such Holder or such prospective purchaser the information required
under Rule 144A under the Securities Act.
SECTION 4.4 Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the
44
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto. For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) hereof shall be accompanied by
a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
(d) If Liquidated Damages are payable under the Registration Rights
Agreement, the Company shall deliver to the Trustee a certificate to that effect
stating (i) the amount of Liquidated Damages that is payable and (ii) the date
on which Liquidated Damages is payable. Unless and until a Responsible Officer
of the Trustee receives at the Corporate Trust Office such a certificate, the
Trustee may assume without inquiry that no Liquidated Damages are payable. If
Liquidated Damages have been paid by the Company directly to the persons
entitled to them, the Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
SECTION 4.5 Taxes.
-----
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
45
SECTION 4.6 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 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 that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as through no such law has
been enacted.
SECTION 4.7 Restricted Payments.
-------------------
(A) The Company shall not, and shall not permit any of
the Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other
payment or distribution on account of the Company's Equity Interests or to the
direct or indirect holders of the Company's Equity Interests in their capacity
as stockholders (other than dividends or distributions payable (a) in Equity
Interests (other than Disqualified Stock) of the Company or (b) to the Company
or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any direct or indirect parent of
the Company (other than any such Equity Interests owned by the Company or any
Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness, except a payment of interest or principal at any
Stated Maturity; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless:
(a) at the time of and after giving effect to such Restricted
Payment, no Default or Event of Default shall have occurred and be continuing;
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to Section 4.09(a); and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and the Restricted
Subsidiaries on or after the Issue Date, is less than the sum, without
duplication, of
46
(i) the amount of the Company's (x) Cumulative
Consolidated Cash Flow determined at the time of such Restricted Payment less
(y) 150% of the cumulative consolidated interest expense, determined for the
period commencing on the first day of the fiscal quarter which includes the
Issue Date and ending on the last day of the last fiscal quarter preceding the
date on which such Restricted Payment is to be made for which reports have been
filed with the Commission or provided to the Trustee pursuant to Section 4.03,
plus
(ii) 100% of the aggregate Net Cash Proceeds received by
the Company after the Issue Date as a Capital Contribution or from the issue or
sale (other than to a Subsidiary of the Company) of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale (other than to
a Subsidiary of the Company) of Disqualified Stock or debt securities of the
Company that have been converted or exchanged into such Equity Interests, plus
the amount of Net Cash Proceeds received by the Company upon such conversion or
exchange (other than a conversion or exchange by a Subsidiary of the Company),
plus
(iii) the aggregate amount equal to the net reduction in
Restricted Investments in Unrestricted Subsidiaries on or after the Issue Date
resulting from (x) dividends, distributions, interest payments, return of
capital, repayments of Restricted Investments or other transfers of assets to
the Company or any Restricted Subsidiary from any Unrestricted Subsidiary and
not otherwise included in the calculation of Cumulative Consolidated Cash Flow
required by clause (c)(i) above, (y) proceeds realized by the Company or any
Restricted Subsidiary upon the sale of such Restricted Investment to a Person
other than the Company or any Subsidiary of the Company, or (z) the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to
exceed in the case of any of the immediately preceding clauses (x), (y) or (z)
the aggregate amount of Restricted Investments made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary on or after the Issue
Date, plus
(iv) to the extent that any Restricted Investment that
was made on or after the Issue Date is sold for cash or otherwise liquidated or
repaid for cash, the lesser of, to the extent paid to the Company or a
Restricted Subsidiary, (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B) the initial
amount of such Restricted Investment, minus
(v) 50% of the cumulative aggregate principal amount of
any outstanding Indebtedness incurred pursuant to Section 4.09(b)(ii).
(B) So long as no Default or Event of Default shall
have occurred and be continuing, the foregoing provisions shall not prohibit
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at said date of declaration such payment
would have complied with the foregoing provisions;
(ii) the redemption, repurchase, retirement, defeasance
or other acquisition of any Subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the Net Cash Proceeds of the substantially
concurrent sale (other than to a
47
Subsidiary of the Company) of, Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such Net Cash Proceeds that
are utilized for, and the Equity Interests issued or exchanged for, any such
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c) of the preceding paragraph and each other clause of
this paragraph;
(iii) the defeasance, redemption, retirement, repurchase
or other acquisition of Subordinated Indebtedness with the Net Cash Proceeds
from, or issued in exchange for, a substantially concurrent incurrence of
Permitted Refinancing Indebtedness; provided that the amount of any such Net
Cash Proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c) of the
preceding paragraph and each other clause of this paragraph;
(iv) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company held by any member
of the Company's or a Restricted Subsidiary's management; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $3 million in any fiscal year;
(v) Restricted Investments not to exceed the aggregate
fair market value (measured on the date each such Restricted Investment was made
or returned, as applicable), when taken together with all other Restricted
Investments made pursuant to this clause (v) that are at the time outstanding,
the sum of (x) $30 million, plus (y) the amount then available for the making of
Restricted Payments pursuant to clause (c) of the preceding paragraph without
giving effect to subclause (i) thereof;
(vi) Restricted Investments the payment for which
consists exclusively of Equity Interests (other than Disqualified Stock) of the
Company; and
(vii) the repurchase of Equity Interests of the Company
in accordance with, and only to the extent required by, dissenters rights of
appraisal under applicable law.
Each Restricted Payment permitted pursuant to clauses (i), (iv), (v), (vi) and
(vii) above shall be included, and each Restricted Payment permitted pursuant to
clauses (ii), (iii) and (vi) above shall be excluded (except as specifically set
forth in each such clause), for all purposes when performing the calculation set
forth in clause (c) of Section 4.07(A).
(C) The Board of Directors may not designate any
Subsidiary of the Company (other than a newly created Subsidiary in which no
Investment has previously been made (other than any de minimis amount required
to capitalize such Subsidiary in connection with its organization)) as an
Unrestricted Subsidiary (a "Designation") unless: (i) no Default or Event of
Default shall have occurred and be continuing at the time of or after giving
effect to such Designation and (ii) the Company would not be prohibited under
this Indenture from making a Restricted Investment at the time of such
Designation (assuming the effectiveness of such Designation for purposes of this
Section 4.07) in an amount equal to the fair market
48
value of the net Investment of the Company and all Restricted Subsidiaries in
such Subsidiary on such date.
(D) In the event of any such Designation, all
outstanding Investments owned by the Company and the Restricted Subsidiaries in
the Subsidiary so designated will be deemed to be a Restricted Investment made
as of the time of such Designation and will reduce the amount available for
Restricted Payments under Section 4.07(A) or (B). All such outstanding
Investments will be deemed to constitute Restricted Payments in an amount equal
to the fair market value of such Investments at the time of such Designation. A
Designation may be revoked and an Unrestricted Subsidiary may thus be
redesignated as a Restricted Subsidiary (a "Revocation") by a resolution of the
Board of Directors delivered to the Trustee; provided that the Company shall not
make any Revocation unless: (i) no Default or Event of Default shall have
occurred and be continuing at the time of or after giving effect to such
Revocation; and (ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred at such time for all purposes under
this Indenture.
(E) 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) or securities proposed to be transferred or issued by the Company
(or such Restricted Subsidiary, as the case may be) pursuant to the Restricted
Payment. The fair market value of any asset(s) or securities that are required
to be valued by this Section 4.07 shall be determined in good faith by the Board
of Directors; provided that such determination shall be supported by the opinion
or appraisal of an accounting, appraisal or investment banking firm of national
standing if such fair market value would exceed $10 million.
SECTION 4.8 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
------------
(A) The Company shall not, and shall not permit any of
the Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to:
(i) (a) pay dividends or make any other distributions
to the Company or any of the Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (b) pay any Indebtedness owed to the Company or any of the
Restricted Subsidiaries,
(ii) make loans or advances to the Company or any of the
Restricted Subsidiaries, or
(iii) transfer any of its properties or assets to the
Company or any of the Restricted Subsidiaries.
(B) The foregoing restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(a) Existing Indebtedness as in effect on the Issue Date;
49
(b) any Permitted Credit Facility or Permitted Foreign Credit
Facility, provided that (i) the aggregate outstanding amount of any such
Indebtedness does not exceed the amount permitted under clause (v) of the
definition of Permitted Indebtedness, (ii) with respect to any Permitted Credit
Facility, such restrictions apply only in the event of a payment default under
such Permitted Credit Facility, and (iii) the chief financial officer of the
Company determines in good faith that (A) any such restrictions contained in any
such Permitted Credit Facility or Permitted Foreign Credit Facilities are no
more restrictive, taken as a whole, than those contained in a similar credit
facility with terms that are commercially reasonable for a borrower engaged in a
business comparable to the Company that has substantially comparable
Indebtedness, and (B) any such restrictions shall not materially affect the
Company's ability to make principal, premium or interest payments on the Notes;
(c) applicable law;
(d) any instrument governing Indebtedness or Capital Stock of a
Person or assets acquired by the Company or any of the Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent 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 assets 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;
(e) customary non-assignment provisions in leases entered into in
the ordinary course of business;
(f) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, constructed, leased or
improved';
(g) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary pending
its sale or other disposition, provided that the consummation of such
transaction would not result in an Event of Default or an event that, with the
passing of time or giving of notice or both, would constitute an Event of
Default, that such restriction terminates if such transaction is not consummated
and that the consummation or abandonment of such transaction occurs within one
year of the date such agreement was entered into';
(h) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(i) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to Section 4.12 that limit the right of the Company or any of the
Restricted Subsidiaries to dispose of the assets subject to such Lien; and
50
(j) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business.
SECTION 4.9 Incurrence of Indebtedness and Issuance of Preferred Stock.
----------------------------------------------------------
(a) The Company shall not, and shall not permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable for,
contingently or otherwise (including by way of merger, consolidation or
acquisition) (collectively, "incur"), any Indebtedness and the Company shall not
issue or incur any Disqualified Stock and shall not permit any of the Restricted
Subsidiaries to issue or incur any shares of Preferred Stock; provided, however,
that the Company may incur Indebtedness or issue or incur shares of Disqualified
Stock and the Restricted Subsidiaries may incur Acquired Debt or Acquired
Preferred Stock if either:
(i) the Consolidated Leverage Ratio at the end of the
Company's most recently ended fiscal quarter for which a consolidated balance
sheet of the Company (which has been filed with the Commission or provided to
the Trustee pursuant to Section 4.03) immediately preceding the date on which
such additional Indebtedness is incurred or such Preferred Stock is issued or
incurred would have been less than 6.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom); or
(ii) the Consolidated Capital Ratio at the end of the most
recently ended fiscal quarter (for which a consolidated balance sheet of the
Company has been filed with the Commission or provided to the Trustee pursuant
to Section 4.03) would have been less than 2.0 to 1.0 determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom).
(b) Notwithstanding the foregoing, the provisions of the paragraph
set forth immediately above shall not prohibit the incurrence of any of the
following items of Indebtedness (collectively, "Permitted Indebtedness"):
(i) Permitted Refinancing Indebtedness;
(ii) the incurrence by the Company of Indebtedness
represented by the Notes and the Exchange Notes;
(iii) the incurrence of Indebtedness by the Company owing to
any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary owing to
the Company or any Restricted Subsidiary (but such Indebtedness shall be deemed
to be incurred upon such Indebtedness being held by any person other than the
Company or such Restricted Subsidiary including upon Designation and upon such
Restricted Subsidiary otherwise no longer being a Restricted Subsidiary);
provided that in the case of Indebtedness of the Company, such obligations shall
be unsecured and subordinated in all respects to the Company's obligations
pursuant to the Notes;
(iv) the incurrence by the Company of Indebtedness in an
aggregate amount incurred and outstanding at any time pursuant to this clause
(iv) of up to $30 million;
51
(v) the incurrence (A) by the Company or any Restricted
Subsidiary (other than any Foreign Subsidiary) of Senior Debt (including under
one or more Permitted Credit Facilities) and (B) by any Foreign Subsidiary of
Indebtedness pursuant to one or more Permitted Foreign Credit Facilities, in an
aggregate amount incurred and outstanding at any time pursuant to this clause
(v) of up to the sum of (x) $125 million and (y) 85% of the aggregate accounts
receivable of the Company and the Restricted Subsidiaries as of the date of the
most recently available balance sheet of the Company which has been included in
a report filed with the Commission or provided to the Trustee pursuant to
Section 4.03;
(vi) the incurrence by the Company or any Foreign Subsidiary
of Purchase Money Indebtedness (A) pursuant to the terms of any Purchase Money
Indebtedness facility existing and as in effect on the Issue Date or (B)
constituting not more than 75% of the cost, including shipping, installation and
importation costs and sales, use and similar taxes (collectively, "Costs")
payable upon acquisition of the subject property (determined in accordance with
GAAP in good faith by the Board of Directors of the Company), to the Company or
any such Foreign Subsidiary, as applicable, of the property so purchased,
developed, acquired, constructed, improved or leased; provided that, with
respect to any Purchase Money Indebtedness incurred under clause (B) above, at
least 25% of the Costs payable upon acquisition of the subject property shall be
funded from Newly Raised Capital; provided, further, that any assets acquired by
a Foreign Subsidiary pursuant to this clause (vi) are acquired for use in the
ordinary course of business of such Foreign Subsidiary;
(vii) the incurrence by the Company or any of the Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging interest or foreign currency exchange rate risk with respect to any
floating rate Indebtedness or foreign currency based Indebtedness, respectively,
that is permitted by the terms of this Indenture to be outstanding; provided
that the notional amount of any such Hedging Obligation does not exceed the
amount of Indebtedness or other liability to which such Hedging Obligation
relates; and
(viii) the incurrence by the Company and the Restricted
Subsidiaries of Indebtedness solely in respect of bankers acceptances, letters
of credit and performance bonds, all in the ordinary course of business.
(c) Indebtedness or Preferred Stock of any Person which is
outstanding at the time such Person becomes a Restricted Subsidiary of the
Company (including upon designation of any Subsidiary or other Person as a
Restricted Subsidiary or upon a Revocation such that such Subsidiary becomes a
Restricted Subsidiary) or is merged with or into or consolidated with the
Company or a Restricted Subsidiary of the Company shall be deemed to have been
incurred at the time such Person becomes such a Restricted Subsidiary of the
Company or is merged with or into or consolidated with the Company or a
Restricted Subsidiary of the Company, as applicable.
(d) Upon each incurrence, the Company may designate pursuant to
which provision of this Section 4.09 such Indebtedness is being incurred and
such Indebtedness shall not be deemed to have been incurred by the Company under
any other provision of this Section 4.09, except as stated otherwise in the
foregoing provisions or in the next sentence. For purposes of determining
compliance with this covenant, in the event that an item of Indebtedness
52
meets the criteria of more than one of the types of Indebtedness described in
Section 4.09(b)(i) through (viii) above, or is permitted under the first
paragraph of this Section 4.09 and under one or more of such Sections, the
Company, in its sole discretion, may from time to time reclassify such item of
Indebtedness.
(e) The Company shall not, and shall not permit any of its
Restricted Subsidiaries (other than Foreign Subsidiaries) to, incur any
Indebtedness (including Permitted Indebtedness) that is contractually
subordinated in right of payment to any other Indebtedness unless such
Indebtedness is also contractually subordinated in right of payment to the Notes
on substantially identical terms; provided, however, that no Indebtedness shall
be deemed to be contractually subordinated in right of payment to any other
Indebtedness solely by virtue of being unsecured.
SECTION 4.10 Asset Sales.
-----------
The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale, unless:
(i) the Company (or such Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (as determined in good faith by the Board of Directors
(including as to the value of all noncash consideration) and set forth in an
Officer's Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of;
(ii) at least 75% of the consideration therefor is in the form
of cash and/or Cash Equivalents or Qualified Consideration; and
(iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects:
(a) to the redemption or repurchase of outstanding
Indebtedness, (I) that is either (A) secured Indebtedness or (B) Indebtedness of
the Company that ranks equally with the Notes but has a maturity date that is
prior to the maturity date of the Notes, in either case other than Subordinated
Indebtedness, or (II) that is Indebtedness of a Restricted Subsidiary; and/or
(b) to reinvest such Net Cash Proceeds (or any portion
thereof) in properties or assets (including Equity Interests of a Person that
will become a Restricted Subsidiary as a result of such investment) that will be
used in a Permitted Business.
The balance of such Net Cash Proceeds, after the application of such Net Cash
Proceeds as described in the immediately preceding clauses (a) and (b), shall
constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds equals or exceeds $10
million (taking into account income earned on such Excess Proceeds), the Company
shall be required to make a pro rata offer to all Holders and pari passu
Indebtedness with comparable provisions
53
requiring such Indebtedness to be purchased with the proceeds of such Asset Sale
(an "Asset Sale Offer") to purchase the maximum principal amount or accreted
value in the case of Indebtedness issued with an original issue discount of
Notes and pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof or the accreted value thereof, as applicable, plus
accrued and unpaid interest thereon to the date of purchase (subject to the
right of Holders as of the relevant record date to receive interest due on the
relevant interest payment date), in accordance with the procedures set forth in
this Indenture and the agreements governing such pari passu Indebtedness. To the
extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
pari passu Indebtedness tendered into such Asset Sale Offer surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and pari passu Indebtedness to be purchased on a pro rata basis in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness. Upon completion of such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero for purposes of the first sentence of
this paragraph.
The amount of
(i) any liabilities (as shown on the Company's (or such
Restricted Subsidiary's, as the case may be) most recent balance sheet), other
than Subordinated Indebtedness, of the Company or any Restricted Subsidiary,
that are assumed by the transferee of any such assets pursuant to an agreement
that immediately releases the Company and all of the Restricted Subsidiaries
from all liability in respect thereof;
(ii) Indebtedness of any Restricted Subsidiary that is no
longer a Restricted Subsidiary as a result of such Asset Sale, if the Company
and all of the Restricted Subsidiaries immediately are released from all
Guarantees of payment of such Indebtedness and such Indebtedness is no longer
the liability of the Company or any of the Restricted Subsidiaries; and
(iii) any securities, notes or other obligations received by
the Company (or such Restricted Subsidiary, as the case may be) from such
transferee that are converted by the Company (or such Restricted Subsidiary, as
the case may be) into cash and/or Cash Equivalents within 90 days of the date of
such Asset Sale (to the extent of the cash and/or Cash Equivalents received)
will be deemed to be cash and/or Cash Equivalents for purposes of this
provision.
Notwithstanding any provision of this Section 4.10, the provisions of
this Section 4.10 shall not apply to any transaction constituting a Restricted
Payment that is permitted by Section 4.07 or that otherwise constitutes a
Permitted Investment.
SECTION 4.11 Transactions with Affiliates.
----------------------------
The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or
54
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions
(A) involving aggregate consideration in excess of $5
million, the Company delivers to the Trustee a resolution of the Board of
Directors set forth in an Officers' Certificate that such Affiliate Transaction
is approved by a majority of the disinterested members of the Board of Directors
and that such Affiliate Transaction complies with clause (i) above and is in the
best interests of the Company or such Restricted Subsidiary; and
(B) if involving aggregate consideration in excess of
$10 million, a favorable written opinion as to the fairness to the Company of
such Affiliate Transaction from a financial point of view is also obtained by
the Company from an accounting, appraisal or investment banking firm of national
standing.
Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions:
(i) (a) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan, program or
arrangement, related trust agreement or any other similar arrangement for or
with any employee, officer or director heretofore or hereafter entered into in
the ordinary course of business, including vacation, health, insurance, deferred
compensation, retirement, savings or other similar plans or (b) the payment of
compensation, performance of indemnification or contribution obligations, or an
issuance, grant or award of stock, options, or other equity-related interests or
other securities, to employees, officers or directors in the ordinary course of
business;
(ii) transactions between or among the Company and/or the
Restricted Subsidiaries;
(iii) payment of reasonable directors fees;
(iv) any sale or other issuance of Equity Interests (other
than Disqualified Stock) of the Company;
(v) Affiliate Transactions in effect or approved by the Board
of Directors on the Issue Date, including any amendments thereto (provided that
the terms of such amendments are not materially less favorable to the Company
than the terms of such agreement prior to such amendment); and
55
(vi) Restricted Payments that are permitted under Section 4.07
and Permitted Investments described under clause (d) of the definition thereof.
SECTION 4.12 Liens.
-----
The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) to secure Indebtedness upon any of their property or assets,
now owned or hereafter acquired, or upon any income or profits therefrom unless
all payments due under this Indenture and the Notes are secured (except as
provided in the next clause) on an equal and ratable basis with the obligations
so secured and no Lien shall be granted or be allowed to exist which secures
Subordinated Indebtedness except with respect to Acquired Debt, in which case,
however, such Liens must be made junior and subordinate to the Liens granted to
the Holders of the Notes.
SECTION 4.13 Corporate Existence.
-------------------
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the lose thereof is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.14 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 (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at a purchase price in
cash equal to 101% of the aggregate principal amount thereof (the "Change of
Control Payment"), plus accrued and unpaid interest (and Liquidated Damages, if
any) thereon to the date of purchase (subject to the right of Holders as of a
record date to receive interest due on the relevant interest payment date);
provided, that, the Company shall not be obligated to repurchase Notes pursuant
to a Change of Control Offer in the event that it has exercised its rights to
redeem all of the Notes pursuant to this Indenture. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to purchase Notes on the date specified in such notice, which date shall be no
earlier than 30 and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), in accordance with the procedures
required by this Indenture and described in such notice.
56
(b) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations to the
extent such laws and regulations are applicable in connection with the purchase
of Notes as a result of a Change of Control. To the extent that the provisions
of any securities laws or regulations conflict with any of the provisions of
this Section 4.14, the Company shall comply with the applicable securities laws
and regulations and will be deemed not to have breached its obligations under
this Section 4.14 by virtue thereof.
(c) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment plus accrued and unpaid
interest thereon and Liquidated Damages, if any, in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail or deliver to each Holder of Notes
so tendered the Change of Control Payment plus accrued and unpaid interest
thereon and Liquidated Damages, if any, for such Notes, and the Trustee shall
promptly authenticate and mail or deliver (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of Notes surrendered, if any; provided that each such new Note will be
in a principal amount of $1,000 or an integral multiple thereof. The Company
shall publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
SECTION 4.15 Business Activities.
-------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage, to more than a de minimis extent, in any business other
than a Permitted Business.
SECTION 4.16 Payments for Consent.
--------------------
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or is paid to all Holders of the Notes that consent, waive or agree to amend
such terms or provisions of this Indenture or the Notes in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
SECTION 4.17 Money for Payments to Be Held in Trust.
--------------------------------------
If the Company shall at any time act as its own Paying Agent, it
shall, on or before each due date of the principal, premium, interest or
Liquidated Damages, if any, with respect to the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, interest or Liquidated Damages, if any, so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
57
Whenever the Company shall have one or more Paying Agents for the
Notes, it shall, on or before each due date of the principal, premium, interest
or Liquidated Damages, if any, with respect to the Notes, deposit with a Paying
Agent a sum in same day funds (or New York Clearing House funds if such deposit
is made prior to the date on which such deposit is required to be made)
sufficient to pay the principal, premium, interest or Liquidated Damages, if
any, so becoming due (or at the option of the Company, payment of interest may
be mailed by check to the Holders of the Notes at their respective addresses Bet
forth in the register of Holders; provided that all payments with respect to
Notes represented by one or more permanent global Notes will be paid by wire
transfer of immediately available funds to the account of the Depository Trust
Company or any successor thereto) such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, interest or Liquidated
Damages, if any, and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee written notice of any default by the Company
(or any other obligor upon the Notes) in the making of any payment of principal,
premium, interest or Liquidated Damages, if any;
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with
the provisions of this Indenture relating to the duties, rights and obligations
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal, premium, interest or
Liquidated Damages, if any, with respect to a Note and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company at the written request of the Company or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect
58
to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense of the
Company cause notice to be promptly sent to each Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 4.18 Status as Investment Company.
----------------------------
The Company shall not, and shall not permit any of its Subsidiaries or
controlled Affiliates to, conduct its business in a fashion that would cause the
Company to be required to register as an "investment company" (as that term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act")), or otherwise to become subject to regulation under the
Investment Company Act. For purposes of establishing the Company's compliance
with this provision, any exemption which is or would become available under
Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act will be
disregarded.
ARTICLE 5
SUCCESSORS
----------
SECTION 5.1 Merger, Consolidation or Sale of Assets.
---------------------------------------
(a) The Company may not, directly or indirectly, (1) consolidate or
merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related transactions, to another
Person or (2) permit any of the Restricted Subsidiaries to enter into any such
transaction or series of transactions if it would result in such disposition of
all or substantially all of the assets of the Company and the Restricted
Subsidiaries on a consolidated basis, unless:
(i) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Registration Agreement, the
Notes, the Exchange Notes and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;
(iii) no Default or Event of Default (or an event that, with
the passing of time or giving of notice or both, would constitute an Event of
Default) shall exist or shall occur immediately after giving effect on a pro
forma basis to such transaction;
59
(iv) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company, the Company or the
Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made will immediately after such transaction and
after giving pro forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable period, be permitted
to incur at least $1.00 of additional Indebtedness pursuant to Section
4.09(a)(i);
(v) if, as a result of any such transaction, property or
assets of the Company would become subject to a Lien subject to the provisions
of this Indenture described under Section 4.12, the Company or the successor
entity to the Company shall have secured the Notes as required by said Section;
and
(vi) 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)
comply with this Indenture.
(b) The Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
SECTION 5.2 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
hereof, the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to and (except
in the case of a lease) be substituted for (so that from and after the date of
such consolidation, merger or transfer, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor Person and not
to the Company), and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
herein as the company, and (except in the case of a lease) the Company shall be
released from the obligations under the Notes and this Indenture except with
respect to any obligations that arise from, or are related to, such transaction.
ARTICLE 6
DEFAULTS AND REMEDIES
---------------------
SECTION 6.1 Events of Default.
-----------------
(a) "Events of Defaults" are:
(i) default for 30 days in the payment when due of interest
on the Notes; or
(ii) default in the payment when due of the principal of, or
premium, if any, on the Notes; or
60
(iii) failure by the Company or any of the Restricted Subsidiaries
to comply with the provisions described in Section 4.10 or 4.14; or
(iv) failure by the Company or any of the Restricted Subsidiaries
for 60 days after notice to comply with any of its other agreements in this
Indenture, the Notes or the Escrow Agreement; or
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness of the Company or any of the Restricted Subsidiaries (or the
payment of which is Guaranteed by the Company or any of the Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists or is created
after the Issue Date, and either such Indebtedness is already due and payable or
such default results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the amount of any such Indebtedness,
together with the amount of any other such Indebtedness the maturity of which
has been so accelerated or which is already due and payable, aggregates $10
million or more; or
(vi) one or more judgments, orders or decrees for the payment of
money in excess of $10 million, individually or in the aggregate (net of
applicable insurance coverage which is acknowledged in writing by the insurer),
shall be entered against the Company or any Restricted Subsidiary or any of
their respective properties and shall not be discharged and there shall have
been a period of 60 days or more during which a stay of enforcement of such
judgment or order, by reason of pending appeal or otherwise, shall not be in
effect; or
(vii) the Company shall assert or acknowledge in writing that
the Escrow Agreement is invalid or unenforceable; or
(viii) the Company or any of its Significant Subsidiaries:
(A) commences a voluntary case under any Bankruptcy Law,
(B) consents to the entry of an order for relief against it
in an involuntary case under any Bankruptcy Law,
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due; or
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries,
61
(B) appoints a custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries, or
(C) orders the liquidation of the Company or any of its
Significant Subsidiaries; and the order or decree remains unstayed and in effect
for 60 consecutive days.
(b) The Company shall be required to deliver to the Trustee
annually a statement regarding compliance with this Indenture, and the Company
shall be required within 30 days of becoming aware of any Default or Event of
Default to deliver to the Trustee a statement specifying such Default or Event
of Default. The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal of, premium, if any, or interest on, the Notes) if it
determines that withholding notice is in their interest.
SECTION 6.2 Acceleration
------------
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (viii)
or (ix) of Section 6.01 hereof occurs with respect to the Company, any of its
Restricted Subsidiaries that constitutes a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.
SECTION 6.3 Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding 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 of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.4 Waiver of Past Defaults.
-----------------------
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes (or, with respect to a provision of this Indenture
that may only be amended by
62
the Holders of not less than 66 2/3% in aggregate principal amount of the then
outstanding Notes, the Holders of not less than 66 2/3% in aggregate principal
amount of the then outstanding Notes) by written notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and Liquidated Damages, if
any, or interest on, the Notes (including in connection with an offer to
purchase). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5 Control by Majority.
-------------------
Holders may not enforce this Indenture or the Notes except as
provided herein. Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other Holders or that may
involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits.
-------------------
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.7 Rights of Holders of Notes to Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest an
63
the Note, on or after the respective due dates expressed in the Note (including
in connection with an offer to purchase), or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to participate as a member, voting or otherwise, of
any official committee of creditors appointed in such matter and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
----------
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
64
First: to the Trustee, its agents and counsel for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any, and
interest, respectively, and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the cost of the suit, and the
court in its discretion may assess reasonable Costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
-------
SECTION 7.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the occurrence and continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates (or similar documents) or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates (or similar
65
documents) and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein or otherwise verify
the contents thereof).
(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
be request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or expense
including reasonable attorneys' fees that might be incurred by it in compliance
with such request or direction.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any such document. The
Trustee shall receive and retain financial reports and statements of the Company
as provided herein, but it shall have no duty to review or analyze such reports
or statements to determine compliance with covenants or other obligations of the
Company.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any opinion of
counsel shall be full and complete authorization and protection from liability
in
66
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any such attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, 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, order, approval, bond or other paper or document unless requested in
writing to do so by the Holders representing more than 25% in aggregate
principal amount of Notes then outstanding; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
indemnity reasonably satisfactory to it against such cost, expense or liability
as a condition to so proceeding.
SECTION 7.3 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 any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof
SECTION 7.4 Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not
67
be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.5 Notice of Defaults.
------------------
(a) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee in accordance with the provisions of paragraph (a) of
this Section 7.05, the Trustee shall mail to Holders a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.6 Reports by Trustee to Holders of the Notes.
------------------------------------------
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Notes are listed in accordance with TIA Section 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.7 Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
parties shall agree from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and hold it harmless against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the company (including this Section 7.07) and defending itself against any
68
claim (whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its gross negligence or bad faith. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement, made without its consent, which consent shall not be
unreasonably withheld or delayed.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01 (vii) or (viii) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.8 Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed 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
69
Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
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 of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or transfer all
or substantially all of its corporate trust business to (including the
administration of this Indenture), another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has (or in the case of a subsidiary of a bank holding
company, its parent shall have) a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIA Section 311 (a), excluding any creditor
relationship listed in TIA Section 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311 (a) to the extent indicated therein.
70
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------------
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.2 Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its obligations
under such Notes and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments delivered to it by the
Company acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due from the
trust referred to below; (b) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payment and
money for security payments held in trust; (c) the rights, powers, trusts,
duties and immunities of the Trustee, and the Company's obligations in
connection therewith; and (d) Section 8.02 of this Indenture. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
SECTION 8.3 Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Article V and in Sections 4.03,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply
71
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(iii) through 6.01(vi) hereof shall not constitute
Events of Default.
SECTION 8.4 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit, or cause to be deposited,
with the Trustee, in trust, for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes on the stated maturity thereof or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of Legal Defeasance, the Company must deliver to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that, since the Issue Date, the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
there has been a change in the applicable United States 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
United States federal income tax purposes as a result of such Legal Defeasance,
and will be subject to United States federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company must deliver to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that the Holders will not recognize income, gain or loss
for United States federal income tax purposes as a result of such Covenant
Defeasance, and such Holders will be subject to United States federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other
72
than this Indenture) to which the Company or any of the Restricted Subsidiaries
is a party or by which the Company or any of the Restricted Subsidiaries is
bound;
(f) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over other creditors of the Company, or with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and
(g) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States reasonably acceptable
to the Trustee, each stating that the conditions precedent provided for or
relating to Legal Defeasance or Covenant Defeasance, as applicable, in the case
of the Officers' Certificate, in clauses (a) through (f) and, in the case of the
Opinion of Counsel, in clauses (a) (with respect to the validity and perfection
of the security interest) and clauses (b) and (c) of this paragraph, have been
complied with.
SECTION 8.5 Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively, and solely for purposes of this Section 8.05,
the "Trustee") pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.6 Repayment to Company.
--------------------
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, interest
or Liquidated Damages, if any, on any Note and remaining unclaimed for two years
after such principal, and premium, if any, interest or Liquidated Damages has
become due and payable shall be paid to the Company
73
on its request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 8.7 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, interest or Liquidated Damages on any
Note following 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 held by the Trustee or Paying Agent.
SECTION 8.8 Survival.
--------
The Trustee's rights under this Article 8 shall survive termination of
this Indenture.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
--------------------------------
SECTION 9.1 Without Consent of Holders.
--------------------------
Notwithstanding Section 9.02 hereof, the Company and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
74
(d) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
hereunder of any Holder; or
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2 With Consent of Holders.
-----------------------
Except as provided below in this Section 9.02, the Company and the
Trustee, may amend or supplement this Indenture (including Section 3.09 and 4.10
hereof) and the Notes or any supplemental indenture or modify the rights of the
Holders with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, the Notes); provided that no such
modification may, without the consent of each Holder affected thereby:
(i) reduce the principal amount of, change the fixed maturity
of, or alter the redemption provisions of, the Notes,
(ii) change the currency in which any Notes or amounts owing
thereon is payable,
(iii) reduce the percentage of the aggregate principal amount
outstanding of Notes which must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture or the Notes,
(iv) impair the right to institute suit for the enforcement of
any payment on or with respect to the Notes,
(v) waive a default in payment with respect to the Notes,
(vi) reduce the rate or change the time for payment of
interest on the Notes,
75
(vii) following the occurrence of a Change of Control or an
Asset Sale, alter the Company's obligation to purchase the Notes as a result of
any such Change of Control or Asset Sale in accordance with this Indenture or
waive any default in the performance thereof,
(viii) affect the ranking of the Notes in a manner adverse to
the Holders, or
(ix) release any Liens created by the Escrow Agreement except
in accordance with the terms of the Escrow Agreement.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
SECTION 9.3 Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note.
However, any such Holder or subsequent Holder may revoke the consent as to its
Note if the Trustee receives written notice of revocation before the date the
waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every
Holder. An amendment or waiver shall become effective upon receipt by the
Trustee of the requisite number of written consents under Section 9.01 or 9.02
as applicable.
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
76
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 held Notes 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.
SECTION 9.5 Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee to Sign Amendments, Etc.
-------------------------------
Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee and all
other conditions to the execution and delivery of such amendment or supplement
set forth in this Article 9 are fulfilled. The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment is the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
ARTICLE 10
SATISFACTION AND DISCHARGE
--------------------------
SECTION 10.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall be discharged and shall cease to be of further
effect as to all Notes issued hereunder, when either
(a) all such Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust) have been delivered to the Trustee for cancellation; or
(b) (i) all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount of money sufficient
77
to pay and discharge the entire indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for principal amount, premium, if
any, and accrued interest to the date of such deposit; (ii) the Company has paid
all sums payable by it under this Indenture; and (iii) the Company has delivered
irrevocable instructions to the Trustee to apply the deposited money toward the
payment of the Notes at Stated Maturity or on the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been complied with.
SECTION 10.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 4.17
hereof, all money deposited with the Trustee pursuant to Section 10.01 hereof
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to Persons entitled thereto, of the principal (and premium, if any),
interest and Liquidated Damages, if any, for whose payment such money has been
deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though such deposit had occurred pursuant to
Section 10.01 hereof, provided that if the Company has made any payment of
principal of, premium, if any, or interest on 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
Government Securities held by the Trustee or Paying Agent.
ARTICLE 11
SECURITY
--------
SECTION 11.1 Security.
--------
(a) On the Issue Date, the Company shall deposit, and at all times,
subject to the Escrow Agreement, grant to the Trustee as security for the
benefit of the Holders, security interests in the Escrow Collateral. The Escrow
Collateral must be in such amount together with the proceeds from the investment
thereof, to be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first three scheduled interest payments (but not any liquidated
damages) due on the outstanding Notes. Security interests in the Escrow
Collateral shall be pledged by the Company to the Trustee for the benefit of the
Holders pursuant to the Escrow Agreement and shall be held by the Trustee in the
Escrow Account pending disposition pursuant to the Escrow
78
Agreement. The Liens created by the Escrow Agreement shall be first priority
security interests in the Escrow Collateral.
Pursuant to the Escrow Agreement, funds may be disbursed from the
Escrow Account only to pay interest on the Notes. If a portion of the Notes has
been retired by the Company, funds representing the lesser of
(i) the excess of the amount sufficient to pay interest
through and including June 1, 2001 on the Notes not so retired and
(ii) the interest payments which have not previously been made
on such retired Notes for each interest payment date through and including the
interest payment date to occur on June 1, 2001, shall be paid to the Company if
no Default then exists under this Indenture.
Pending such disbursements, all funds contained in the Escrow Account
shall be invested in U.S. Government Securities. Interest earned on the U.S.
Government Securities shall be placed in the Escrow Account. The proceeds of
the Escrow Account shall be applied, first, to amounts owing to the Trustee in
respect of fees and expenses of the Trustee and, second, to all obligations
under the Notes and this Indenture.
(b) Each Holder, by its acceptance of a Note, consents and agrees
to the terms of the Escrow Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Escrow Collateral) as
the same may be in effect or may be amended from time to time in accordance with
its terms, and authorizes and directs the Trustee to enter into the Escrow
Agreement and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. The Company shall do or cause to be
done all such acts and things as may be reasonably necessary or proper, or as
may be required by the provisions of the Escrow Agreement, to assure and confirm
to the Trustee the security interest in the Escrow Collateral contemplated
hereby, by the Escrow Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Notes secured hereby, according to the intent and
purposes herein expressed. The Company shall take, or shall cause to be taken,
any and all actions reasonably required (and any action reasonably requested by
the Trustee) to cause the Escrow Agreement to create and maintain, as security
for the obligations of the Company under this Indenture and the Notes, valid and
enforceable first priority liens in and on the Escrow Collateral, in favor of
the Trustee, superior to and prior to the rights of third Persons and subject to
no other Liens.
(c) The release of any Escrow Collateral pursuant to the Escrow
Agreement shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Escrow
Collateral is released pursuant to this Indenture and the Escrow Agreement. To
the extent applicable, the Company shall cause TIA Section 314(d), relating to
the release of property or securities from the Lien and security interest of the
Escrow Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Escrow
Agreement, to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
79
independent Person, which Person shall be an independent appraiser or other
expert selected or approved by the Company in the exercise of reasonable care.
(d) The Company shall cause TIA Section 314(b), relating to
opinions of counsel regarding the Lien under the Escrow Agreement, to be
complied with. The Trustee may, to the extent permitted by Section 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments.
(e) The Trustee, in its sole discretion and without the consent of
the Holders, may, and at the request of the Holders of at least 25% in aggregate
principal amount of Notes then outstanding shall, on behalf of the Holders, take
all actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Escrow Agreement and (ii) collect and receive any and all amounts
payable in respect of the obligations of the Company thereunder. The Trustee
shall have power to institute and to maintain such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Escrow Collateral (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interest of the Holders or of the Trustee).
ARTICLE 12
MISCELLANEOUS
-------------
SECTION 12.1 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 12.2 Notices.
-------
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
Telephone: (650) 298-0400
Facsimile: (650) 298-0420
80
with a copy to:
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
155 Constitution Drive
Menlo Park, CA 94025
Attention: Scott C. Dettmer
Telephone: (650) 321-2400
Facsimile: (650) 321-2800
If to the Trustee:
State Street Bank and Trust Company
of California, N.A.
633 West 5th Street, 12th Floor
Los Angeles, CA 90071
Attention: Corporate Trust Administration
(Equinix, Inc. 13% Senior Notes
due 2007)
Telephone: (213) 362-7369
Facsimile: (213) 362-7357
With a copy to:
Shipman & Goodwin LLP
One American Row
Hartford, CT 06103-2819
Attention: Daniel P. Brown, Jr., Esq.
Telephone: (860) 251-5919
Facsimile: (860) 251-5999
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged by the sender's
telecopier, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
81
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it, except that any notice or communication to the Trustee shall be
deemed to have been duly given to the Trustee when received at the Corporate
Trust Office of the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 12.3 Communication by Holders with Other Holders.
-------------------------------------------
Holders may communicate pursuant to TIA Section 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 Section 312(c).
SECTION 12.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, except with respect to the initial
authentication of Notes on the date of this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 12.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has or
they have made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
82
SECTION 12.6 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.7 No Personal Liability of Directors, Officers, Employees and
-----------------------------------------------------------
Stockholders.
- ------------
No past, present or future director, officer, employee, incorporator,
agent or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
SECTION 12.8 GOVERNING LAW.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Company shall submit to the jurisdiction of the U.S. federal and
New York state courts located in the Borough of Manhattan, City and State of New
York for purposes of all legal actions and proceedings instituted in connection
with the Notes and this Indenture.
SECTION 12.9 Consent to Jurisdiction and Service.
-----------------------------------
To the fullest extent permitted by applicable law, the Company hereby
irrevocably submits to the jurisdiction of any Federal or State court located in
the Borough of Manhattan in The City of New York, New York in any suit, action
or proceeding based on or arising out of or relating to this Agreement or any
Notes or Exchange Notes, and irrevocably agree that all claims in respect of
such suit or proceeding may be determined in any such court. The Company
irrevocably waives, to the fullest extent permitted by law, any objection which
they may have to the laying of the venue of any such suit, action or proceeding
brought in such a court and any claim that any suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. The Company
agrees that final judgment in any such suit, action or proceeding brought in
such a court shall be conclusive and binding upon the Company and may be
enforced in the courts of any jurisdiction to which the Company is subject by a
suit upon such judgment, provided that service of process is effected upon the
Company in the manner specified herein or as otherwise permitted by law. To the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
now, attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of their respective obligations
under this Agreement, to the extent permitted by law.
83
SECTION 12.10 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.11 Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 12.12 Severability.
------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.13 Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.14 Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Indenture signature page follows]
84
[Indenture signature page]
Dated as of December 1, 1999
EQUINIX, INC.
By: /s/ Jay S. Adelson
---------------------
Name: Jay S. Adelson
Title: Secretary
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By: /s/ Scott C. Emmons
----------------------
Name: Scott C. Emmons
Title: Vice President
85
EXHIBIT A-1
(Face of Note)
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
This Note is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of principal
amount of this Security, the issue price is $949.35 and the amount of original
issue discount is $50.65. The issue date of this Security is December 1, 1999
and the yield to maturity is 14.074%.
CUSIP______________
13% Senior Notes due 2007
No. $200,000,000
EQUINIX, INC.
promises to pay to [Insert if a Global Note: Cede & Co.][Insert if a Definitive
Note:________]
or registered assigns, the principal sum of
Dollars on December 1, 2007.
Interest Payment Dates: December 1 and June 1.
Record Dates: November 15 and May 15.
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: December 1, 1999
EQUINIX, INC.
By: _______________________________
Name:
Title:
By:________________________________
Name:
Title:
A-1
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Notes referred to in the within-mentioned Indenture:
Dated: December 1, 1999
STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
By:
_____________________________
Authorized Signatory
A-2
(Back of Note)
13% Senior Notes due 2007
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Equinix, Inc., a Delaware corporation (the "Company"),
--------
promises to pay interest on the principal amount of this Note at 13% per annum
from December 1, 1999 until maturity and shall pay the Liquidated Damages
payable in accordance with the provisions of the following paragraph. The
Company shall pay interest and Liquidated Damages semi-annually on December 1
and June 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default or Event of Default relating to the payment of interest, and if
this Note is authenticated between a Record Date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be June 1, 2000. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1.0% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement. If (a) the Company fails to file any of the
Registration Statements required by the Registration Rights Agreement on or
before the date specified for such filing, (b) any of such Registration
Statements is not declared effective by the Commission on or prior to the date
specified for such effectiveness, (c) the Company fails to consummate the
Registered Exchange Offer within 210 days of the Issue Date with respect to the
Exchange Offer Registration Statement, or (d) any Registration Statement
required by the Registration Rights Agreement is declared effective but
thereafter ceases to be effective or usable in connection with its intended
purpose (each such event referred to in clauses (a) through (d) above a
"Registration Default"), then the Company shall pay to each holder of Transfer
Restricted Notes (as defined in the Registration Rights Agreement) affected
thereby liquidated damages ("Liquidated Damages") which shall accrue and be
payable semi-annually on the Notes and the Exchange Notes (in addition to the
stated interest on the Notes and the Exchange Notes) from and including the date
such Registration Default occurs to, but excluding the date on which the
applicable Registration Statement is filed or is declared effective, the
Registered Exchange Offer is consummated, or the applicable Registration
Statement is again declared effective or made usable. During the time that
Liquidated Damages is accruing continuously, the rate of such Liquidated Damages
shall be 0.50% per annum during the first 90-day period and shall increase by
0.25% per annum for each subsequent 90-day period, but in no event shall such
rate exceed 1.50% per annum in the aggregate regardless of the number of
Registration Defaults. If, after the cure of all Registration
A-3
Defaults then in effect, there is a subsequent Registration Default, the rate of
Liquidated Damages for such subsequent Registration Default shall initially be
0.50%, regardless of the Liquidated Damages rate in effect with respect to any
prior Registration Default at the time of the cure of such Registration Default.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
-----------------
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders at the close of business on May 15 or November 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium and Liquidated Damages, if any, and
interest at the office or agency of the Company maintained for such purpose
within or outside of the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made by check mailed
to the Holders at their addresses set forth in the register of Holders kept by
the Registrar, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest,
premium and Liquidated Damages on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
--------------------------
Trust Company of California, N.A., the Trustee under the Indenture, shall act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Restricted Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
---------
dated as of December 1, 1999 ("Indenture") between the Company 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, as amended (15
U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $200 million in
aggregate principal amount.
5. OPTIONAL REDEMPTION.
-------------------
(a) The Notes shall not be redeemable at the Company's option prior
to December 1, 2003. Thereafter, the Notes shall be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of
Holders as of the relevant Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:
A-4
Year Percentage
---- ----------
2003.................................. 106.500%
2004.................................. 103.250%
2005 and thereafter................... 100.000%
(b) Any redemption pursuant to this Section 5 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Company shall not be required to make
--------------------
mandatory redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
------------------------------
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to purchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at a purchase price in
cash equal to 101% of the aggregate principal amount thereof (the "Change of
Control Payment"), plus accrued and unpaid interest (and Liquidated Damages, if
any) thereon to the date of purchase (subject to the right of Holders as of a
Record Date to receive interest due on the relevant Interest Payment Date);
provided, that, the Company shall not be obligated to repurchase Notes pursuant
to a Change of Control Offer in the event that it has exercised its rights to
redeem all of the Notes pursuant to the Indenture. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to purchase Notes on the date specified in such notice, which date shall be no
earlier than 30 and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), in accordance with the procedures
required by the Indenture and described in such notice.
(b) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations to the
extent such laws and regulations are applicable in connection with the purchase
of Notes as a result of a Change of Control. To the extent that the provisions
of any securities laws or regulations conflict with any of the provisions of
this covenant, the Company shall comply with the applicable securities laws and
regulations and will be deemed not to have breached its obligations under this
covenant by virtue thereof.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment plus accrued and unpaid
interest thereon and Liquidated Damages, if any, in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail or deliver to each Holder so
tendered the Change of Control Payment plus accrued and unpaid interest thereon
and Liquidated Damages, if any, for such Notes, and the Trustee
A-5
shall promptly authenticate and mail or deliver (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of Notes surrendered, if any; provided that each such new
Note will be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
(d) The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale, unless (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Qualified
Consideration, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the redemption or repurchase of outstanding Indebtedness (I) that is either (A)
secured Indebtedness or (B) Indebtedness of the Company that ranks equally with
the Notes but has a maturity date that is prior to the maturity date of the
Notes, in either case other than Subordinated Indebtedness or (II) that is
Indebtedness of a Restricted Subsidiary and/or (b) to reinvest such Net Cash
Proceeds (or any portion thereof) in properties or assets (including Equity
Interests of a person that will become a Restricted Subsidiary as a result of
such investment) that will be used in a Permitted Business. The balance of such
Net Cash Proceeds, after the application of such Net Cash Proceeds as described
in the immediately preceding clauses (a) and (b), shall constitute "Excess
Proceeds."
(e) When the aggregate amount of Excess Proceeds equals or exceeds
$10 million (taking into account income earned on such Excess Proceeds), the
Company shall be required to make a pro rata offer to all Holders and pari passu
Indebtedness with comparable provisions requiring such Indebtedness to be
purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") to
purchase the maximum principal amount or accreted value in the case of
Indebtedness issued with an original issue discount of Notes and pari passu
Indebtedness that may be purchased out of the Excess Proceeds, at a purchase
price in cash in an amount equal to 100% of the principal amount thereof or the
accreted value thereof, as applicable, plus accrued and unpaid interest thereon
to the date of purchase (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date), in accordance with the procedures set forth in Article 3 of the Indenture
and the agreements governing such pari passu Indebtedness. To the extent that
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and pari passu
Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
pari passu Indebtedness to be purchased on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such other
Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero for purposes of the first sentence of this
paragraph.
A-6
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
--------------------
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
---------------------------------
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a Record
Date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note on the
---------------------
Registrar's books may be treated as its owner for all purposes under the
Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
--------------------------------
the Indenture and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Note may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented among other things, to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company's assets in accordance with the terms of the
Indenture, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
12. DEFAULTS AND REMEDIES.
---------------------
(a) Events of Default under the Indenture include: (i) the failure to
pay interest on, including Liquidated Damages, if any, with respect to, the
Notes, when the same becomes due and payable if such default continues for a
period of 30 days, (ii) the failure to pay principal of any Notes when such
principal becomes due and payable, at maturity, upon redemption or otherwise;
(iii) failure by the Company or any Restricted Subsidiary to comply with
Sections 4.10 or 4.14 of the Indenture; (iv) failure by the Company or any
Restricted Subsidiary for 60 days after notice to comply with any of its other
agreements in the Indenture, the Escrow Agreement or this Note; (v) default
under any mortgage, indenture or instrument
A-7
under which there may be issued or by which there may be secured or evidenced
any Indebtedness by the Company or any of the Restricted Subsidiaries (or the
payment of which is Guaranteed by the Company or any of the Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, and either such Indebtedness is already due and payable or
such default results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the amount of any such Indebtedness,
together with the amount of any other such Indebtedness or the maturity of which
has been so accelerated, aggregates $10.0 million or more; (vi) failure by the
Company or any of the Restricted Subsidiaries to pay final judgments not subject
to appeal aggregating in excess of $10.0 million; (vii) one or more judgments,
orders or decrees for the payment of money in excess of $10.0 million,
individually or in the aggregate (net of applicable insurance coverage which is
acknowledged in writing by the insurer), shall be entered against the Company or
any Restricted Subsidiary or any of their respective properties and shall not be
discharged and there shall have been a period of 60 days or more during which a
stay of enforcement of such judgment or order, by reason of pending appeal or
otherwise, shall not be in effect; (viii) the Company shall assert or
acknowledge in writing that the Escrow Agreement is invalid or unenforceable; or
(ix) certain events of bankruptcy or insolvency with respect to the Company or
any of its Significant Subsidiaries.
(b) If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all principal of, premium (if any) on and interest on the Notes to
be due and payable immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or a Significant Subsidiary, all outstanding Notes will
become due and payable without further action or notice.
(c) Holders may not directly enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power.
(d) The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of all the Holders
waive any existing Default or Event of Default and its consequences under the
Indenture, except a continuing Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Notes.
(e) The Company shall be required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company shall be
required upon becoming aware of any Default or Event of Default to deliver to
the Trustee a statement specifying such Default or Event of Default. The Trustee
may withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal of,
premium, if any, or interest on, the Notes) if it determines that withholding
notice is in their interest.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
-----------------------------
any other capacity, may make loans to, accept deposits from, and perform
services for the
A-8
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
--------------------------
incorporator or stockholder of the Company, as such, will have any liability for
any obligations of the Company with respect to the Notes or the Indenture, or
for any claim based on, or in respect or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note will waive and release any
and all such liability. Such waiver and release are part of the consideration
for issuance of the Notes. Such waiver may not be effective to waive
liabilities under federal securities laws and it is the view of the Commission
that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated
--------------
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
-------------
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
-----------------------------------------------------------
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
- ---------------------------
under the Indenture, Holders shall have all the rights set forth in the
Registration Rights Agreement.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:______________ Your Signature:
(Sign exactly as your name appears on the face of this
Note)
Tax Identification No.:________________________________
SIGNATURE GUARANTEE:
_______________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation
in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to,
or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the box below:
(B) Section 4.10 (B) Section 4.14
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
elect to have purchased: $_________
Date:______________ Your Signature:
(Sign exactly as your name appears on the face of this
Note)
Tax Identification No.:________________________________
SIGNATURE GUARANTEE:
_______________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation
in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to,
or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE/1/
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note
Principal Amount of Principal Amount of following such
Date of Exchange this Global Note this Global Note decrease (or increase)
- ---------------- --------------------- --------------------- ----------------------
____________________________
/1/ This should be included only if the Note is issued in global form.
A-12
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF
A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH
RESPECT TO THE NOTES), MAY NOT BE: OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903
OR RULE 904 OF REGULATION S, AS DEFINED IN THE SECURITIES ACT OR (2) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
A-2-1
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
A-2-2
CUSIP ________
13% Senior Notes due 2007
No. $
This Note is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of principal
amount of this Security, the issue price is $949.35 and the amount of original
issue discount is $50.65. The issue date of this Security is December 1, 1999
and the yield to maturity is 14.074%.
EQUINIX, INC. promises to pay to Cede & Co. or registered assigns, the
principal sum of 200,000 Dollars on December 1, 2007.
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and November 15.
A-2-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: December 1, 1999
EQUINIX, INC.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
A-2-4
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Notes referred to in the within-mentioned Indenture:
Dated: December 1, 1999
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee
By: _____________________________
Authorized Signatory
EQUINIX, INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
A-2-5
(Back of Regulation S Temporary Global Note)
13% Senior Notes due 2007
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Equinix, Inc., a Delaware corporation (the "Company"),
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promises to pay interest on the principal amount of this Note at 13% per annum
from December 1, 1999 until maturity and shall pay the Liquidated Damages
payable in accordance with the provisions of the following paragraph. The
Company shall pay interest and Liquidated Damages semi-annually on December 1
and June 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that if there
is no existing Default or Event of Default relating to the payment of interest,
and if this Note is authenticated between a Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be June 1, 2000. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1.0% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
The Holder of this Note is entitled to the benefits of the Registration Rights
Agreement. If (a) the Company fails to file any of the Registration Statements
required by the Registration Rights Agreement on or before the date specified
for such filing, (b) any of such Registration Statements is not declared
effective by the Commission on or prior to the date specified for such
effectiveness, (c) the Company fails to consummate the Registered Exchange Offer
within 210 days of the Issue Date with respect to the Exchange Offer
Registration Statement, or (d) any Registration Statement required by the
Registration Rights Agreement is declared effective but thereafter ceases to be
effective or usable in connection with its intended purpose (each such event
referred to in clauses (a) through (d) above a "Registration Default"), then the
Company shall pay to each holder of Transfer Restricted Notes (as defined in the
Registration Rights Agreement) affected thereby liquidated damages ("Liquidated
Damages") which shall accrue and be payable semi-annually on the Notes and the
Exchange Notes (in addition to the stated interest on the Notes and the Exchange
Notes) from and including the date such Registration Default occurs to, but
excluding the date on which the applicable Registration Statement is filed or is
declared effective, the Registered Exchange Offer is consummated, or the
applicable Registration Statement is again declared effective or made usable.
During the time that Liquidated Damages is accruing continuously, the rate of
such Liquidated Damages shall be 0.50% per annum during the first 90-day period
and shall increase by 0.25% per annum for each subsequent 90-day period, but in
no event shall such rate exceed 1.50% per annum in the aggregate regardless of
the number of Registration Defaults. If, after the cure of all Registration
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Defaults then in effect, there is a subsequent Registration Default, the rate of
Liquidated Damages for such subsequent Registration Default shall initially be
0.50%, regardless of the Liquidated Damages rate in effect with respect to any
prior Registration Default at the time of the cure of such Registration Default.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
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(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders at the close of business on the May 15 or November 15 next
preceding the Interest Payment Date, even if such Notes are canceled after such
Record Date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium and Liquidated Damages, if any, and
interest at the office or agency of the Company maintained for such purpose
within or outside of the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made by check mailed
to the Holders at their addresses set forth in the register of Holders kept by
the Registrar, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest,
premium and Liquidated Damages on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and
--------------------------
Trust Company of California, N.A., the Trustee under the Indenture, shall act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Restricted Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
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as of December 1, 1999 ("Indenture") between the Company 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, as amended (15
U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $200.0 million
in aggregate principal amount.
5. OPTIONAL REDEMPTION.
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(a) The Notes shall not be redeemable at the Company's option prior
to December 1, 2003. Thereafter, the Notes shall be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of
Holders as of a relevant Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:
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Year Percentage
---- ----------
2003.................................. 106.500%
2004.................................. 103.250%
2005 and thereafter................... 100.000%
(b) Any redemption pursuant to this Section 5 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Company shall not be required to make
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mandatory redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
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(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to purchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at a purchase price in
cash equal to 101% of the aggregate principal amount thereof (the "Change of
Control Payment"), plus accrued and unpaid interest (and Liquidated Damages, if
any) thereon to the date of purchase (subject to the right of Holders as of a
Record Date to receive interest due on the relevant Interest Payment Date);
provided, that, the Company shall not be obligated to repurchase Notes pursuant
to a Change of Control Offer in the event that it has exercised its rights to
redeem all of the Notes pursuant to the Indenture. Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to purchase Notes on the date specified in such notice, which date shall be no
earlier than 30 and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), in accordance with the procedures
required by the Indenture and described in such notice.
(b) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations to the
extent such laws and regulations are applicable in connection with the purchase
of Notes as a result of a Change of Control. To the extent that the provisions
of any securities laws or regulations conflict with any of the provisions of
this covenant, the Company shall comply with the applicable securities laws and
regulations and will be deemed not to have breached its obligations under this
covenant by virtue thereof.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment plus accrued and unpaid
interest thereon and Liquidated Damages, if any, in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail or deliver to each Holder so
tendered the Change of Control Payment plus accrued and unpaid interest thereon
and Liquidated Damages, if any, for such Notes, and the Trustee
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shall promptly authenticate and mail or deliver (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of Notes surrendered, if any; provided that each such new
Note shall be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
(d) The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale, unless (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Qualified
Consideration, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the redemption or repurchase of outstanding Indebtedness (I) that is either (A)
secured Indebtedness or (B) Indebtedness of the Company that ranks equally with
the Notes but has a maturity date that is prior to the maturity date of the
Notes, in either case other than Subordinated Indebtedness or (II) that is
Indebtedness of a Restricted Subsidiary and/or (b) to reinvest such Net Cash
Proceeds (or any portion thereof) in properties or assets (including Equity
Interests of a person that will become a Restricted Subsidiary as a result of
such investment) that will be used in a Permitted Business. The balance of such
Net Cash Proceeds, after the application of such Net Cash Proceeds as described
in the immediately preceding clauses (a) and (b), shall constitute "Excess
Proceeds."
(e) When the aggregate amount of Excess Proceeds equals or exceeds
$10 million (taking into account income earned on such Excess Proceeds), the
Company shall be required to make a pro rata offer to all Holders and pari passu
Indebtedness with comparable provisions requiring such Indebtedness to be
purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") to
purchase the maximum principal amount or accreted value in the case of
Indebtedness issued with an original issue discount of Notes and pari passu
Indebtedness that may be purchased out of the Excess Proceeds, at a purchase
price in cash in an amount equal to 100% of the principal amount thereof or the
accreted value thereof, as applicable, plus accrued and unpaid interest thereon
to the date of purchase (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date), in accordance with the procedures set forth in Article 3 of the Indenture
and the agreements governing such pari passu Indebtedness. To the extent that
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and pari passu
Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
pari passu Indebtedness to be purchased on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such other
Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero for purposes of the first sentence of this
paragraph.
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8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
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least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
---------------------------------
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a Record
Date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note on the
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Registrar's books may be treated as its owner for all purposes under the
Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
--------------------------------
the Indenture and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Note may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented among other things, to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company's assets in accordance with the terms of the
Indenture, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
12. DEFAULTS AND REMEDIES.
---------------------
(a) Events of Default under the Indenture include: (i) the failure to
pay interest on, including Liquidated Damages, if any, with respect to, the
Notes, when the same becomes due and payable if such default continues for a
period of 30 days, (ii) the failure to pay principal of any Notes when such
principal becomes due and payable, at maturity, upon redemption or otherwise;
(iii) failure by the Company or any Restricted Subsidiary to comply with
Sections 4.10 or 4.14 of the Indenture; (iv) failure by the Company or any
Restricted Subsidiary for 60 days after notice to comply with any of its other
agreements in the Indenture, the Escrow Agreement or this Note; (v) default
under any mortgage, indenture or instrument
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under which there may be issued or by which there may be secured or evidenced
any Indebtedness by the Company or any of the Restricted Subsidiaries (or the
payment of which is Guaranteed by the Company or any of the Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, and either such Indebtedness is already due and payable or
such default results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the amount of any such Indebtedness,
together with the amount of any other such Indebtedness or the maturity of which
has been so accelerated, aggregates $10.0 million or more; (vi) failure by the
Company or any of the Restricted Subsidiaries to pay final judgments not subject
to appeal aggregating in excess of $10.0 million or more; or (vii) one or more
judgments, orders or decrees for the payment of money in excess of $10.0
million, individually or in the aggregate (net of applicable insurance coverage
which is acknowledged in writing by the insurer), shall be entered against the
Company or any Restricted Subsidiary or any of their respective properties and
shall not be discharged and there shall have been a period of 60 days or more
during which a stay of enforcement of such judgment or order, by reason of
pending appeal or otherwise, shall not be in effect; or (viii) the Company shall
assert or acknowledge in writing that the Escrow Agreement is invalid or
unenforceable; or (ix) certain events of bankruptcy or insolvency with respect
to the Company or any of its Significant Subsidiaries.
(b) If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all principal of, premium (if any) on and interest on the Notes to
be due and payable immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or a Significant Subsidiary, all outstanding Notes shall
become due and payable without further action or notice.
(c) Holders may not directly enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power.
(d) The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of all Holders
waive any existing Default or Event of Default and its consequences under the
Indenture, except a continuing Default or Event of Default in the payment of
principal of, premium, if any, or interest on the Notes.
(e) The Company shall be required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company shall be
required upon becoming aware of any Default or Event of Default to deliver to
the Trustee a statement specifying such Default or Event of Default. The Trustee
may withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal of,
premium, if any, or interest on, the Notes) if it determines that withholding
notice is in their interest.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
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any other capacity, may make loans to, accept deposits from, and perform
services for the
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Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
--------------------------
incorporator or stockholder of the Company, as such, will have any liability for
any obligations of the Company with respect to the Notes or the Indenture, or
for any claim based on, or in respect or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note will waive and release any
and all such liability. Such waiver and release are part of the consideration
for issuance of the Notes. Such waiver may not be effective to waive
liabilities under federal securities laws and it is the view of the Commission
that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated
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by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
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a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
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RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
- ---------------------------
under the Indenture, Holders shall have all the rights set forth in the
Registration Rights Agreement.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:___________________ Your Signature:______________________________
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:_______________________
SIGNATURE GUARANTEE:
_____________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $
Date:___________________ Your Signature:______________________________
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No:_______________________
SIGNATURE GUARANTEE:
_____________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global Note for
an interest in another Global Note, or of other Restricted Global Notes for an
interest in this Regulation S Temporary Global Note, have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note
Principal Amount of Principal Amount of following such
Date of Exchange this Global Note this Global Note decrease (or increase)
- ----------------- ---------------------- --------------------- -----------------------
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
State Street Bank and Trust Company
of California, N.A.,
as Trustee
633 West 5th Street, 12th Floor
Los Angeles, CA 90071
Attention: Corporate Trust Department
Re: Equinix, Inc. 13% Senior Notes due 2007
Reference is hereby made to the Indenture, dated as of December 1,
1999 (the "Indenture"), between Equinix, Inc., as issuer (the "Company"), and
State Street Bank and Trust Company of California, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
_________________ (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $____ in such Note[s] or interests (the "Transfer"), to
______________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
(1) [_] Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Note for
its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule
144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation
of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive
Note and in this Indenture and the Securities Act.
B-1
(2) [_] Check if Transferee will take delivery of a beneficial interest in the
Temporary Regulation S Global Note, the Regulation S Global Note or a
Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior
to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of this Indenture, the
transferred beneficial interest or Definitive Note will be subject to
the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Temporary
Regulation S Global Note and/or the Definitive Note and in this
Indenture and the Securities Act.
(3) [_] Check and complete if Transferee will take delivery of a beneficial
interest in a Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable
to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities
Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies
that (check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
Subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act.
B-2
(4) [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in this Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of this
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in this Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in this Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of this
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) [_] Check if Transfer is Pursuant to other Exemption. (i)
The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other
than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions
on transfer contained in this Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
______________________________________
(Insert Name of Transferor)
By:________________________________
Name:
Title:
Dated:___________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ___), or
(ii) [_] Regulation S Global Note (CUSIP ___) or
(b) (B) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ___), or
(ii) [_] Regulation S Global Note (CUSIP ___); or
(iii) [_] Unrestricted Global Note (CUSIP ___); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
State Street Bank and Trust Company
of California, N.A.,
as Trustee
633 West 5th Street, 12th Floor
Los Angeles, CA 90071
Attention: Corporate Trust Department
Re: Equinix, Inc. 13% Senior Notes due 2007
(CUSIP _______)
Reference is hereby made to the Indenture, dated as of December 1,
1999 (the "Indenture"), between Equinix, Inc., as issuer (the "Company") and
State Street Bank and Trust Company of California, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
_____________ (the "Owner") owns and proposes to exchange the Note(s)
or interest in such Note(s) specified herein, in the principal amount of
$_____________ in such Note(s) or interests (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the owner's beneficial interest in
a Restricted Global Note for a beneficial interest in an Unrestricted
Global Note in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as amended
(the "Securities Act"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
C-1
(b) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
(c) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(d) [_] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in this Indenture and the Securities Act.
C-2
(b) [_] Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial
interest in the [CHECK ONE] (B) 144A Global Note, (B) Regulation S Global
Note, with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in this Indenture and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
____________________________________
(Insert Name of Owner)
By:_______________________________
Name:
Title:
Dated:__________________
C-3