Exhibit 4.1
----------------------------------------
OMNIPOINT CORPORATION,
as Issuer
and
MARINE MIDLAND BANK,
as Trustee
---------------
INDENTURE
Dated as of December 2, 1996
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11 5/8 % Series A Senior Notes due 2006
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1
CROSS-REFERENCE TABLE
---------------------
TIA SECTIONS INDENTURE SECTIONS
------------ ------------------
(S) 310(a)(1)............................ 7.9
(a)(2)............................ 7.9
(b)............................ 7.2; 7.7
(S) 311(a)............................ 7.2
(b)............................ 7.2
(S) 312(a)............................ 2.3
(b)............................ 10.2
(c)............................ 10.2
(S) 313(a)............................ 7.5
(c)............................ 7.4; 7.5; 10.2
(d)............................ 7.5
(S) 314(a)............................ 4.18; 7.4; 10.2
(a)(4)............................ 4.17; 10.2
(c)(1)............................ 10.3
(c)(2)............................ 10.3
(e)............................ 4.17; 10.4
(S) 315(a)............................ 7.1
(b)............................ 7.4; 10.2
(c)............................ 7.1
(d)............................ 7.1
(e)............................ 6.11
(S) 316(a)(1)(A)......................... 6.5
(a)(1)(B)............................ 6.4
(b)............................ 6.7
(c)............................ 9.3
(S) 317(a)(1)............................ 6.8
(a)(2)............................ 6.9
(b)............................ 2.4
(S) 318(a)............................ 10.1
(c)............................ 10.1
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
2
TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
Section 1.1 Definitions...................................... 1
Section 1.2 Incorporation by Reference of Trust Indenture Act 22
Section 1.3 Rules of Construction............................ 22
ARTICLE II
The Notes
Section 2.1 Form and Dating.................................. 23
Section 2.2 Execution, Authentication and Denominations...... 24
Section 2.3 Registrar and Paying Agent....................... 25
Section 2.4 Paying Agent to Hold Money in Trust.............. 26
Section 2.5 Transfer and Exchange............................ 26
Section 2.6 Replacement Notes................................ 28
Section 2.7 Outstanding Notes................................ 29
Section 2.8 Temporary Notes.................................. 30
Section 2.9 Cancellation..................................... 30
Section 2.10 CUSIP Numbers.................................... 31
Section 2.11 Defaulted Interest............................... 31
ARTICLE III
Optional Redemption
Section 3.1 Right of Redemption.............................. 31
Section 3.2 Notices to Trustee............................... 32
Section 3.3 Selection of Notes to Be Redeemed................ 32
Section 3.4 Notice of Redemption............................. 33
Section 3.5 Effect of Notice of Redemption................... 34
Section 3.6 Deposit of Redemption Price...................... 34
Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
i
Section 3.7 Payment of Notes Called for Redemption...................... 35
Section 3.8 Notes Redeemed in Part...................................... 35
Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
ii
ARTICLE IV
Covenants
Section 4.1 Payment of Notes.......................................... 35
Section 4.2 Maintenance of Office or Agency........................... 36
Section 4.3 Limitation on Indebtedness................................ 36
Section 4.4 Limitation on Restricted Payments......................... 39
Section 4.5 Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries............ 42
Section 4.6 Limitation on the Issuance and Sale of Capital
Stock of Restricted Subsidiaries.......................... 43
Section 4.7 Limitation on Issuances of Guarantees by
Restricted Subsidiaries................................... 44
Section 4.8 Limitation on Transactions with Stockholders
and Affiliates............................................ 45
Section 4.9 Limitation on Liens....................................... 45
Section 4.10 Limitation on Sale-Leaseback Transactions................. 47
Section 4.11 Limitation on Asset Sales................................. 47
Section 4.12 Repurchase of Notes upon a Change of Control.............. 48
Section 4.13 Limitation on Use of Proceeds............................. 48
Section 4.14 Existence................................................. 49
Section 4.15 Payment of Taxes and Other Claims......................... 49
Section 4.16 Maintenance of Properties and Insurance................... 49
Section 4.17 Compliance Certificates................................... 50
Section 4.18 Commission Reports and Reports to Holders................. 51
Section 4.19 Waiver of Stay, Extension or Usury Laws................... 51
Section 4.20 Limitation on Mirror Indebtedness......................... 51
Section 4.21 Escrow Account............................................ 52
Section 4.22 Limitation on Activities of the Special Subsidiary........ 52
ARTICLE V
Successor Corporation
Section 5.1 When Company May Merge, Etc............................... 52
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
iii
ARTICLE VI
Default and Remedies
Section 6.1 Events of Default......................................... 53
Section 6.2 Acceleration.............................................. 54
Section 6.3 Other Remedies............................................ 56
Section 6.4 Waiver of Past Defaults................................... 56
Section 6.5 Control by Majority....................................... 56
Section 6.6 Limitation on Suits....................................... 56
Section 6.7 Rights of Holders to Receive Payment...................... 57
Section 6.8 Collection Suit by Trustee................................ 57
Section 6.9 Trustee May File Proofs of Claim.......................... 58
Section 6.10 Priorities................................................ 58
Section 6.11 Undertaking for Costs..................................... 59
Section 6.12 Restoration of Rights and Remedies........................ 59
Section 6.13 Rights and Remedies Cumulative............................ 59
Section 6.14 Delay or Omission Not Waiver.............................. 59
ARTICLE VII
Trustee
Section 7.1 Rights of Trustee......................................... 60
Section 7.2 Individual Rights of Trustee.............................. 63
Section 7.3 Trustee's Disclaimer...................................... 63
Section 7.4 Notice of Default......................................... 63
Section 7.5 Reports by Trustee to Holders............................. 64
Section 7.6 Compensation and Indemnity................................ 64
Section 7.7 Replacement of Trustee.................................... 65
Section 7.8 Successor Trustee by Merger, Etc.......................... 66
Section 7.9 Eligibility............................................... 67
Section 7.10 Money Held in Trust....................................... 67
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
iv
ARTICLE VIII
Discharge of Indenture
Section 8.1 Termination of Company's Obligations...................... 67
Section 8.2 Defeasance and Discharge of Indenture..................... 68
Section 8.3 Defeasance of Certain Obligations......................... 70
Section 8.4 Application of Trust Money................................ 71
Section 8.5 Repayment to Company...................................... 72
Section 8.6 Reinstatement............................................. 72
ARTICLE IX
Amendments, Supplements and Waivers
Section 9.1 Without Consent of Holders................................ 73
Section 9.2 With Consent of Holders................................... 73
Section 9.3 Revocation and Effect of Consent.......................... 75
Section 9.4 Notation on or Exchange of Notes.......................... 75
Section 9.5 Trustee to Sign Amendments, Etc........................... 76
Section 9.6 Conformity with Trust Indenture Act....................... 76
ARTICLE X
Miscellaneous
Section 10.1 Trust Indenture Act....................................... 76
Section 10.2 Notices................................................... 76
Section 10.3 Certificate and Opinion as to Conditions Precedent........ 78
Section 10.4 Statements Required in Certificate or Opinion............. 78
Section 10.5 Acts of Holders........................................... 79
Section 10.6 Rules by Trustee, Paying Agent or Registrar............... 79
Section 10.7 Payment Date Other Than a Business Day.................... 79
Section 10.8 Governing Law............................................. 80
Section 10.9 No Adverse Interpretation of Other Agreements............. 80
Section 10.10 No Recourse Against Others................................ 80
Section 10.11 Successors................................................ 80
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
v
Section 10.12 Duplicate Originals....................................... 81
Section 10.13 Separability.............................................. 81
Section 10.14 Table of Contents, Headings, Etc.......................... 81
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
vi
INDENTURE, dated as of December 2, 1996, between OMNIPOINT CORPORA-
TION, a Delaware corporation, as Issuer (the "Company"), and MARINE MIDLAND
BANK, a New York banking corporation and trust company, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $200 million aggregate principal
amount of the Company's 115/8% Series A Senior Notes due 2006 issuable as
provided in this Indenture, whether Original Notes (as defined below) or
Exchange Notes (as defined below). All things necessary to make this Indenture
a valid agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as hereinafter
provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER 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
proportionate benefit of all Holders, as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.1 Definitions.
-----------
"Accredited Investor Notes" has the meaning provided in Section 2.1.
1
"Acquired Debt" means, with respect to any specified Person, Idebted-
ness of any other Person existing at the time such other Person merged with
or into or became a Subsidiary of such specified Person, including Indebtedness
incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Subsidiary of such specified Person.
"Adjusted Consolidated Net Income" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person (other than the
Company or any of its Restricted Subsidiaries) has a majority interest and the
net income of any Unrestricted Subsidiary, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any of its
Restricted Subsidiaries by such other Person or such Unrestricted Subsidiary
during such period; (ii) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Restricted Subsidiary; (iii) any gains or losses (on an after-tax basis)
attributable to Asset Sales; and (iv) all extraordinary gains and extraordinary
losses.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or co-
Registrar.
2
"Annualized Consolidated EBITDA" means, with respect to any Person, such
Person's Consolidated EBITDA for the latest two fiscal quarters for which
financial statements are available multiplied by two.
"Asset Acquisition" means (i) an Investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries, provided
that such Person's primary business is a Telecommunications Business or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries of the property
and assets of any Person other than the Company or any of its Restricted
Subsidiaries that constitute all or substantially all of the assets of such
Person or a division or line of business of such Person, provided that the
property and assets acquired are Telecommunications Assets.
"Asset Disposition" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or a Restricted
Subsidiary of the Company) of (i) all or substantially all of the Capital Stock
of any Restricted Subsidiary of the Company or (ii) all or substantially all of
the assets that constitute a division or line of business of the Company or any
of its Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation, and any sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries disposed of outside the ordinary course of business of the Company
or such Restricted Subsidiary and, in each case, that is not governed by the
provisions of the Indenture applicable to mergers, consolidations and sales of
all or substantially all of the assets of the Company, provided that "Asset
Sale" shall not include (i) sales or other dispositions of inventory,
receivables and other current assets, (ii) substantially simultaneous exchanges
by the Company or any Restricted Subsidiary of Telecommunications Assets for
other Telecommunications Assets, provided that the Telecommunications
3
Assets received by the Company or such Restricted Subsidiary have at least
substantially equal value to the Company or such Restricted Subsidiary (as
determined by the Board of Directors whose good faith determination shall be
conclusive and evidenced by a Board Resolution), provided further that, after
giving pro forma effect to such exchange, the Consolidated Leverage Ratio shall
be no greater than the Consolidated Leverage Ratio immediately prior to such
exchange, (iii) sales or other dispositions of assets with a fair market value
(as certified in an Officers' Certificate) not in excess of $1 million, (iv) any
sale or other disposition of any or all the Capital Stock of an Unrestricted
Subsidiary or (v) any sale or other disposition of Temporary Cash Investments.
Additionally, the contribution of Telecommunications Assets to an Unrestricted
Subsidiary whereby the Company or a Restricted Subsidiary receives Capital Stock
of an Unrestricted Subsidiary shall be deemed a Restricted Payment only and
shall not be deemed an Asset Sale.
"August Notes" means the Company's 11_% Senior Notes due 2006 issued on
August 27, 1996.
"Average Life" means, at any date of determination with respect to any
Indebtedness, 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.
"Board of Directors" means the Board of Directors of the Company or
any committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
4
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all Common Stock
and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations under a Capitalized Lease.
"Change of Control" means (a) the sale, lease, transfer, conveyance or
other disposition of all or substantially all of the assets of the Company to
any "person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2)
of the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing
of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act)
other than Existing Shareholders (except in connection with a liquidation or
dissolution of the Company that does not constitute a Change of Control under
clause (b) below), (b) the approval by the requisite shareholders of the Company
of a plan of liquidation or statutory dissolution (which shall not be construed
to include a plan of merger or consolidation) of the Company, unless Existing
Shareholders "beneficially own" (as defined in Rule 13d-3 under the Exchange
Act) at least the same percentage of voting power after the consummation of such
plan as before or otherwise retain the right or ability, by voting power, to
control the Person that acquires the proceeds of such liquidation or dissolu-
tion, (c) any "person" or "group" (within the meaning of Sections 13(d)(3) and
14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b) under the Exchange
Act), other than the Existing Shareholders, becomes the "beneficial owner" (as
so defined) of more than 35% of the total voting power of all classes of the
Voting Stock of the Company and/or warrants or options to acquire such Voting
Stock, calculated on a fully diluted basis, provided that Existing Shareholders
"beneficially own" (as so defined) in the aggregate a percentage of
5
such Voting Stock or warrants having a lesser percentage of voting power than
such other "person" or "group" and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Company's Board of Directors, or (d) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Company's
Board of Directors (together with any new directors whose election or appoint-
ment by such board or whose nomination for election by the stockholders of the
Company was approved by a vote of the Existing Shareholders or a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Company's Board
of Directors then in office.
"Closing Date" means the date on which the Notes are originally issued
under the Indenture.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock of
such Person, whether now outstanding or issued after the Closing Date, including
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to Article V of this Indenture and thereafter
means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman, a Vice Chairman, its President, its Chief
Financial Officer or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of
6
the Persons listed in clause (i) above in lieu of being signed by one of such
Persons listed in such clause (i) and one of the officers listed in clause (ii)
above.
"Consolidated EBITDA" means, for any period, the sum of the amounts
for such period of (i) Adjusted Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) income taxes, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income (other than income taxes (x)
(either positive or negative) attributable to extraordinary and nonrecurring
gains or losses or sales of assets and (y) actually payable with respect to such
period), (iv) depreciation expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, (v) amortization expense, to the
extent such amount was deducted in calculating Adjusted Consolidated Net Income,
and (vi) all other non-cash items reducing Adjusted Consolidated Net Income
(other than items that will require cash payments and for which an accrual or
reserve is, or is required by GAAP to be, made), less all non-cash items
increasing Adjusted Consolidated Net Income, all as determined on a consolidated
basis for the Company and its Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a wholly owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of
Consolidated EBITDA attributable to such Restricted Subsidiary multiplied by (B)
the quotient of (1) the number of shares of outstanding Common Stock of such
Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of such
period.
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including amortization of
original issue discount on Indebtedness and the interest portion of any
deferred payment obligation, calculated in accordance with the effective
interest method of accounting; all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements, and
Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Leases paid, accrued or scheduled to be paid or to be
accrued by the Company and its Restricted Subsidiaries during such period;
excluding, however, any amount of such interest of any Restricted Subsidiary to
the
7
extent the net income of such Restricted Subsidiary is excluded in the calcula-
tion of Adjusted Consolidated Net Income pursuant to clause (ii) of the
definition thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated
Net Income pursuant to clause (ii) of the definition thereof), all as determined
on a consolidated basis (without taking into account Unrestricted Subsidiaries)
in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any date of determination, the
ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis as of the end of the two most
recent fiscal quarters for which financial statements of the Company have become
available prior to such date (the "Reference Period") to (ii) the aggregate
amount of Annualized Consolidated EBITDA. In making the foregoing calculation,
(A) Indebtedness shall be calculated after giving pro forma effect to (x) any
Indebtedness (including, if applicable, the Notes) Incurred subsequent to the
end of the Reference Period and on or prior to such date of determination, in
each case as if such Indebtedness had been Incurred and the proceeds thereof had
been applied on the last day of such Reference Period and (y) any Indebtedness
that was outstanding during such Reference Period or thereafter but that is not
outstanding or is to be repaid on such date in each case as if such Indebtedness
was repaid on the last day of such Reference Period; (B) pro forma effect shall
be given to Asset Dispositions and Asset Acquisitions (including giving pro
forma effect to the application of proceeds of any Asset Disposition) that
occurred in such Reference Period or thereafter and on or prior to such date of
determination as if they had occurred and such proceeds had been applied on the
first day of such Reference Period; (C) pro forma effect shall be given to asset
dispositions and asset acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition) that have been made by any
Person that has become a Restricted Subsidiary or has been merged with or into
the Company or any Restricted Subsidiary during such Reference Period or
subsequent to such period and on or prior to such date and that would have
constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions
that occurred on the first day of such Reference Period; and (D) the aggregate
amount of Indebtedness outstanding as of the end of the Reference Period will be
deemed to include the total amount of funds outstanding
8
and/or available on the date under any revolving credit facilities of the
Company or its Restricted Subsidiaries.
"Consolidated Net Worth" means, at any date of determination, stock-
holders' equity as set forth on the most recently available consolidated
balance sheet, whether quarterly or annual, of the Company and its Restricted
Subsidiaries, less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees, and their
respective successors, until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and hereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder.
"Escrow Account" means the escrow account for the initial deposit of
approximately $53.3 million of the net proceeds from the sale of the Notes
under the Escrow Agreement.
"Escrow Agent" means The Chase Manhattan Bank, as Escrow Agent under
the Escrow Agreement, or any successor thereto appointed pursuant to such
Escrow Agreement.
9
"Escrow Agreement" means the Escrow Agreement, dated as of the date
of the Indenture, by and among the Escrow Agent, the Trustee and the Company,
governing the disbursement of funds from the Escrow Account, as amended.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the 11 5/8% Series A Senior Notes due 2006 to be
issued pursuant to this Indenture in connection with the offer to exchange
Exchange Notes for Original Notes that may be made by the Company pursuant to
the Registration Rights Agreement.
"Exchange Offer" means the offer by the Company to exchange Exchange
Notes for Original Notes made pursuant to the Registration Rights Agreement.
"Existing Shareholders" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Madison Dearborn Capital
Partners, L.P., ▇▇▇▇▇ & Company Incorporated and Chatterjee Management Company
and their respective Affiliates at the Closing Date.
"FCC" means the Federal Communications Commission.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of the Indenture, including,
without limitation, those 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 approved by
a significant segment of the accounting profession.
"Global Notes" has the meaning provided in Section 2.1.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect,
10
contingent or otherwise, of such 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 agreements
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 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.
"Holder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including an Incurrence of Indebtedness by reason of the acquisition of more
than 50% of the Capital Stock of any Person; provided that neither the accrual
of interest nor the accretion of original issue discount shall be considered an
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except Trade Payables, (v) all Capitalized Lease Obligations of such Person,
(vi) all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, provided
that the amount of such Indebtedness shall be the lesser of (A) the fair market
value of such asset at such date of determination and (B) the amount of such
Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person and (vii) the
maximum fixed redemption price of Redeemable Stock of such Person at the time of
determination, provided, however, if such Redeemable Stock is not permitted to
be redeemed at the date of determination, the price shall be the book
11
value of such Redeemable Stock. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date (or in the case of a
revolving credit or other similar facility, the total amount of funds outstan-
ding and/or available on the date of determination) of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided (i) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness and (ii) that Indebtedness shall not include any liability for
federal, state, local or other taxes.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Initial Purchasers" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇▇▇▇▇, Sachs & Co., BA Securities, Inc. and ▇▇▇▇▇▇▇▇▇▇
Securities.
"Interest Payment Date" means each semiannual interest payment date on
February 15 and August 15 of each year, commencing February 15, 1997.
"Interest Rate Agreement" means 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, option or future contract or other similar
agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person (whether
purchased or acquired from the issuer
12
or from a third party) and shall include the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, or any agreement to
give any security interest).
"Liquidated Damages" shall have the meaning specified in the Registration
Rights Agreement.
"Mirror Indebtedness" means Indebtedness, which may be subordinated in
right of payment to Indebtedness of the Restricted Subsidiaries permitted to be
Incurred pursuant to Section 4.3, in the form of either (i) a demand note or
(ii) a term note having a final maturity no later than the final maturity of the
Notes, in each case owed by a Restricted Subsidiary to the Company or another
Restricted Subsidiary having interest payment or accrual dates and an interest
rate (whether current pay or accrual) equal to, or more frequent than or greater
than, the Notes.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or Temporary Cash Investments
net of (i) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes (whether or not paid or payable) as a result of such
Asset Sale without regard to the consolidated results of operations of the
Company and its Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company as a reserve
against any liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in conformity
with GAAP and (b) with respect to any issuance or sale of Capital Stock, the
proceeds of such issuance or sale in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to
13
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of attorney's fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Notes" means, prior to the Exchange Offer, the Original Notes, and
after the Exchange Offer, the Original Notes, if any, and the Exchange Notes
that are issued pursuant to this Indenture.
"Offer to Purchase" means an offer by the Company to purchase Notes
from the Holders commenced by mailing a notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed) (the "Payment Date"); (iii) that any Note not tendered will continue to
accrue interest pursuant to its terms; (iv) that, unless the Company defaults in
the payment of the purchase price, any Note accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the Payment
Date; (vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or integral multiples thereof. On the Payment
14
Date, the Company shall (i) accept for payment on a pro rata basis Notes or
portions thereof tendered pursuant to an Offer to Purchase; (ii) deposit with
the Paying Agent money sufficient to pay the purchase price of all Notes or
portions thereof so accepted; and (iii) deliver, or cause to be delivered, to
the Trustee all Notes or portions thereof so accepted together with an Officers'
Certificate specifying the Notes or portions thereof accepted for payment by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Note equal in principal
amount to the unpurchased portion of the Note surrendered, provided that each
Note purchased and each new Note issued shall be in a principal amount of $1,000
or integral multiples thereof. The Company will publicly announce the results of
an Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the Paying Agent for an Offer to Purchase. The Company will comply
with Rule 14e-l under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable,
in the event that the Company is required to repurchase Notes pursuant to an
Offer to Purchase.
"Officer" means with respect to the Company, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two Officers and
delivered to the Trustee. Each Officers' Certificate (other than certificates
provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
"Opinion of Counsel" means a written opinion signed by legal counsel
who is acceptable to the Trustee and delivered to the Trustee. Such counsel may
be an employee of or counsel to the Company or the Trustee. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e).
Opinions of Counsel required to be delivered may have qualifications customary
for opinions of the type required.
"Original Notes" means the 11 5/8% Series A Senior Notes due 2006 that
are issued pursuant to this Indenture and not exchanged for Exchange Notes in
15
connection with the offer to exchange Exchange Notes for Original Notes that may
be made pursuant to the Registration Rights Agreement.
"Paying Agent" has the meaning provided in Section 2.3, except that,
for the purposes of Article VIII, the Paying Agent shall not be the Company or a
Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Permitted Investment" means (i) an Investment in the Company or a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such Person's primary business is a
Telecommunications Business; (ii) a Temporary Cash Investment; (iii) stock,
obligations or securities received in satisfaction of judgments; (iv) any
repurchase of stock, stock options, or warrants from employees pursuant to
agreements entered by the Company or any Restricted Subsidiary for consideration
not to exceed $2 million in any fiscal year; (v) any Investment, together with
all other Investments under this clause (v), less any previous Investments in
Persons pursuant to this clause (v) who subsequently become Restricted
Subsidiaries, not to exceed two times the Net Cash Proceeds received by the
Company on or after July 3, 1996 from the issuance and sale of its Capital Stock
(other than (A) Redeemable Stock and (B) Preferred Stock that provides for the
payment of dividends in cash) to a Person that is not a Subsidiary of the
Company, in a Person in a Telecommunications Business; and (vi) any Investment
or Investments not to exceed $50 million in the aggregate.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made, (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of
16
business in connection with workers' compensation, unemployment insurance and
other types of social security, (iv) Liens incurred or deposits made to secure
the performance of tenders, bids, leases, statutory or regulatory obligations,
bankers' acceptances, surety and appeal bonds, government contracts, performance
and return of money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment of
borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances
and similar charges, encumbrances, title defects or other irregularities that do
not materially interfere with the ordinary course of business of the Company or
any of its Restricted Subsidiaries; (vi) Liens (including extensions and
renewals thereof) upon real or personal property; provided that (a) such Lien is
created solely for the purpose of securing Indebtedness Incurred in accordance
with Section 4.3 (1) to finance the cost (including the cost of improvement or
construction) of the item of property or assets subject thereto and such Lien is
created prior to, at the time of or within six months after the later of the
acquisition, the completion of construction or the commencement of full
operation of such property or (2) to refinance any Indebtedness previously so
secured, (b) the principal amount of the Indebtedness secured by such Lien does
not exceed 100% of such cost, and (c) any such Lien shall not extend to or cover
any property or assets other than such item of property or assets and any
improvements on such item; (vii) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company and
its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property
or assets under construction arising from progress or partial payments by a
customer of the Company or its Restricted Subsidiaries relating to such property
or assets; (ix) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease; (x) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xi) Liens in favor of
the Company or any Restricted Subsidiary; (xii) Liens arising from the rendering
of a final judgment or order against the Company or any Restricted Subsidiary of
the Company that does not give rise to an Event of Default; (xiii) Liens
securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the
products and proceeds thereof; (xiv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (xv) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are either within the
general parameters customary in the industry and incurred in the ordinary course
of
17
business, in each case securing Indebtedness under Interest Rate Agreements and
Currency Agreements and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations in interest
rates or the price of commodities; (xvi) Liens arising out of conditional sale,
title retention, consignment or similar arrangements, or the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Closing Date; and (xvii) Liens on
or sales of receivables.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference equity,
whether now outstanding or issued after the Closing Date, including, without
limitation, all series and classes of such preferred or preference stock.
"principal" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Public Equity Offering" means an underwritten public offering by the
Company of primary shares of Common Stock of the Company pursuant to an
effective registration statement under the Securities Act.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at an time prior to the Stated Maturity of
the Notes or (iii) convertible into or exchangeable for Capital Stock referred
to in clause (i) or (ii) above or Indebtedness having a scheduled maturity prior
to the Stated Maturity of the Notes, provided that any Capital Stock that would
not constitute Redeemable Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the Stated
18
Maturity of the Notes shall not constitute Redeemable Stock if the "asset sale"
or "change of control" provisions applicable to such Capital Sock are no more
favorable to the holders of such Capital Stock than the provisions contained in
Sections 4.11 and 4.12 and such Capital Stock specifically provides that such
Person will not repurchase or redeem any such stock pursuant to such provision
prior to the Company's repurchase of such Notes as are required to be
repurchased pursuant to Sections 4.11 and 4.12.
"Redemption Date", when used with respect to any Note to be redeemed,
means that date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which such Note is to be redeemed pursuant to this Indenture.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Company and the Initial Purchasers dated as of the
Closing Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date means February 1 or August 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
the Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning provided in Section 4.4.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended.
19
"Security Register" has the meaning provided in Section 2.3.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary of the Company that, together with its Subsidiaries, (i)
for the most recent fiscal year of the Company, accounted for more than 10% of
the consolidated revenues of the Company and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Special Subsidiary" means a direct wholly-owned Subsidiary of the
Company designated as such by an Officers' Certificate, which designation may
not be revoked, and subject to Section 4.20.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest or Liquidated
Damages on any debt security, the date specified in such debt security as the
fixed date on which such installment is due and payable.
"Strategic Equity Investor" means a corporation or other entity with
an equity market capitalization, a net asset value or annual revenues of at
least $2 billion which is a Telecommunications Business.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Telecommunications Assets" means, with respect to any Person, any
asset that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of telecommunications equipment, inventory, systems and/or services,
including without limitation, any mobile telephone, PCS, microwave or paging
assets. Telecommunications Assets shall include stock, joint venture or
partnership
20
interests of an entity where substantially all of the assets of the entity
consist of Telecommunications Assets.
"Telecommunications Business" means a business primarily involved in
the ownership, design, development, construction, acquisition, installation,
integration, management and/or provision of Telecommunications Assets.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof not having a maturity of more than two years from the date of
acquisition, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America or any state thereof, and which bank or trust company
has capital surplus and undivided profits aggregating in excess of $50 million
and has outstanding debt which is rated "A" (or such similar equivalent rating)
or higher by at least one nationally recognized statistical rating organizing
(as defined in Rule 436 under the Securities Act) or any money-market fund
sponsored by a registered broker dealer or mutual fund distributor, (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (ii) above entered into with a bank
meeting the qualifications described in clause (ii) above, (iv) commercial paper
maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any state thereof with a
rating at the time as of which any investment therein is made of "P-1" (or
higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or higher)
according to Standard & Poor's Ratings Services, and (v) securities with
maturities of six months or less from the date of acquisition issued or fully
and unconditionally guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority
thereof and rated at least "A" by Standard & Poor's Ratings Services or ▇▇▇▇▇'▇
Investors Service, Inc.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code (S)(S) 77aaa-77bbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.6; provided, however,
that in the
21
event the Trust Indenture Act of 1939 is amended after such date, "TIA" or
"Trust Indenture Act" shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939, as so amended.
"Trade Payables" means any accounts payable or any other indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by the
Company or any of its Restricted Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods or services, except for
payables that are more than 60 days past due and not contested in good faith.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article VII of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of or owns or holds any Lien on any property
of the Company or any Restricted Subsidiary, provided that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000 that such designation would be
permitted under Section 4.4. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company, provided
that immediately after giving effect to such designation (x) the Company could
incur $1.00 of additional Indebtedness under the first paragraph of Section 4.3
and (y) no Default or Event of Default shall have occurred and be continuing.
Any such designation by the Board of Director shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate that such designation complied
with the foregoing provisions.
22
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
Section 1.2 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
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 or a Noteholder;
"indenture to be qualified" means this Indenture;
23
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.3 Rules of Construction. Unless the context otherwise
---------------------
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "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
(vii) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated.
ARTICLE II
The Notes
24
Section 2.1 Form and Dating. The Notes and the Trustee's certificate
---------------
of authentication shall be substantially in the form annexed hereto as Exhibit
A. The Notes may have notations, legends or endorsements required by law, stock
exchange agreements or requirements to which the Company is subject or usage.
The Company shall approve the form of the Notes and any notation, legend or
endorsement on the Notes. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, 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.
The Original Notes shall be issued initially in the form of (i) one or
more global notes in registered form (the "Global Notes") deposited with, or on
------------
behalf of, the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided or (ii) definitive physical certificates in
registered form for delivery to the record holders who are institutional
"accredited investors" under Regulation D under the Securities Act (the
"Accredited Investor Notes"), duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The Exchange Notes initially shall be
issued in the form of one or more Global Notes. Each Global Note shall bear
such legend as may be required or reasonably requested by the Depositary.
The definitive Notes shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Section 2.2 Execution, Authentication and Denominations. Two
-------------------------------------------
Officers shall execute the Notes for the Company by facsimile or manual
signature in the name and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or an authenticating agent authenticates the Note, the
Note shall be valid nevertheless.
25
A Note shall not be valid until the Trustee or an authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
Pursuant to and based upon a Company Order, the Trustee or an
authenticating agent shall authenticate for original issue Original Notes in the
aggregate principal amount of $200,000,000 and shall authenticate for original
issue Exchange Notes up to an aggregate principal amount of $200,000,000,
provided that such Exchange Notes shall be issuable only upon the valid
surrender for cancellation of Original Notes of a like aggregate principal
amount in the Exchange Offer. Such Company Order shall specify the amount of
the Notes to be authenticated and the date on which the original issue of Notes
is to be authenticated. The aggregate principal amount of Notes outstanding at
any time may not exceed the amount set forth above except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.6 or 2.7.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so,
except with regard to the original issuance of the Notes. Except as provided in
the preceding sentence, each reference in this Indenture to authentication by
the Trustee includes authentication by such authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company. The provisions of 7.1, 7.2 and 7.6 hereof shall be
applicable to any authenticating agent.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
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 (the "Registrar"), an office or agency where Notes may be presented
---------
for payment (the "Paying Agent") and an office or agency where notices and
------------
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall cause the Registrar to keep a register of the Notes
and of their
26
transfer and exchange (the "Security Register"). The Security Register
-----------------
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Company may have one or more co-
Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notice and demands. If, at any time, the Trustee is
not the Registrar, the Company shall furnish, or cause to be furnished, to the
Trustee on or before each Interest Payment Date and at such other times as the
Trustee may reasonably request in writing, the names and addresses of the
Holders as they appear in the Security Register. At the option of the Company,
payment of interest may be made by check mailed to the address of the Holders as
such address appears in the Security Register.
Section 2.4 Paying Agent to Hold Money in Trust. Not later than each
-----------------------------------
due date of the principal, premium and Liquidated Damages, if any, and interest
on any Notes, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium and
Liquidated Damages, if any, and interest so becoming due. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent
27
shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium and Liquidated
Damages, if any, and interest on the Notes (whether such money has been paid to
it by the Company or any other obligor on the Notes), and such Paying Agent
shall promptly notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further liability
for the money so paid over to the Trustee.
Section 2.5 Transfer and Exchange. When Notes are presented to the
---------------------
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar's request. No service charge
shall be made for any registration of transfer or exchange of the Notes, 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 other similar governmental charge payable upon exchanges
pursuant to Section 2.8, 3.8 or 9.4).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 3.3 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
Notwithstanding any other provisions of this Section 2.5, unless and
until it is exchanged in whole or in part for Notes in definitive registered
form, a Global Note representing all or a portion of the Notes may not be
transferred except as a whole by the Depositary to a nominee of such Depositary
or by a nominee of such
28
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
If the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the Global Notes or if at any time the Depositary
shall no longer be eligible under the next sentence of this paragraph, the
Company shall appoint a successor Depositary with respect to the Notes. Each
Depositary appointed pursuant to this Section 2.5 must, at the time of its
appointment and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation. The Company will execute, and the Trustee will authenticate and
deliver, Notes in definitive registered form in any authorized denominations, in
an aggregate principal amount equal to the principal amount of the Global Note
or Notes representing such Notes in exchange for such Global Note or Notes if
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for the Global Notes or if any time the Depositary shall no longer
be eligible to serve as Depositary and a successor Depositary for the Notes is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility.
The Company may at any time and in its sole discretion determine that
the Notes shall no longer be represented by a Global Note or Notes. In such
event the Company will execute, and the Trustee will authenticate and deliver,
Notes in definitive registered form in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such Notes in exchange for such Global Note or Notes.
Upon the exchange of a Global Note for Notes in definitive registered
form without coupons, in authorized denominations, such Global Note shall be
cancelled by the Trustee. Notes in definitive registered form issued in
exchange for a Global Note pursuant to this Section 2.5 shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Note, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes
to or as directed by the Persons in whose names such Notes are so registered.
29
Notwithstanding the foregoing, transfer of Original Notes which are
Accredited Investor Notes may be registered only when accompanied by the
following additional information and documents as applicable:
(i) If such Accredited Investor Note is being delivered to the
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in substantially
the form set forth on the reverse of the Note); or
(ii) If such Accredited Investor Note is being transferred (a)
to a Person who the seller reasonably believes is a qualified institutional
buyer (as defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of Rule 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United
States to a foreign person in a transaction meeting the requirements of
Rule 904 under the Securities Act or (d) in accordance with another
exemption from the registration requirements of the Securities Act, a
certification from such Holder to that effect (in substantially the form
set forth on the reverse of the Note) and, in the case of (d), if the
Company so requests, an Opinion of Counsel.
Any Accredited Investor Note transferred pursuant to Rule 144A or Rule 144
under the Securities Act shall thereafter be represented by a Global Note.
All Notes issued upon any registration of transfer or exchange of Notes
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Section 2.6 Replacement Notes. If a mutilated Note is surrendered to the
-----------------
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a bona fide purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount; provided that the requirements of this Section 2.6 are met.
If required by the
30
Trustee or the Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge such Holder for the expenses of the Company and
the Trustee in replacing a Note. In case any such mutilated, lost, destroyed or
wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay such Note instead of issuing a new Note in
replacement thereof.
Every replacement Note is an additional obligation of the Company and shall
be entitled to the benefits of this Indenture.
The provisions of this Section 2.6 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies against the Company and the Trustee
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Notes.
Section 2.7 Outstanding Notes. Notes outstanding at any time are all
-----------------
Notes that have been authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.7 as not outstanding.
If a Note is replaced pursuant to Section 2.6, it ceases to be outstanding
unless and until the Trustee and the Company receive proof satisfactory to each
of them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate of the Company)
holds on a Redemption Date or the maturity date money sufficient to pay Notes
payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
Notes, or portions thereof, for the payment or redemption of which moneys
or U.S. Government Obligations (as provided for in Article VIII) in the
necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside, segregated
and held in trust by the Company for the Holders of such Notes (if the Company
shall act as its own Paying Agent), on and after that time shall cease to be
outstanding and, in
31
the case of redemption, interest on such Notes shall cease to accrue, provided
that if such Notes, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice.
A Note does not cease to be outstanding because the Company or one of its
Affiliates holds such Note, provided, however, that, in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has actual knowledge to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
Section 2.8 Temporary Notes. Until definitive Notes are ready for
---------------
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Notes, as
evidenced by their execution of such temporary Notes. If temporary Notes are
issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for such purpose
pursuant to Section 4.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
32
Section 2.9 Cancellation. The Company at any time may deliver, or cause
------------
to be delivered, Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
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 them in accordance with its normal procedure.
Section 2.10 CUSIP Numbers. The Company in issuing the Notes may use
-------------
"CUSIP" numbers (if then generally in use), and the Company and the Trustee
shall use CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided that any such notice shall state that no representation is
made as to the correctness of such CUSIP numbers either as printed on the Notes
or as contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Notes; and
provided further that failure to use CUSIP numbers in any notice of redemption
or exchange shall not affect the validity or sufficiency of such notice. The
Company shall promptly notify the Trustee of any change in CUSIP numbers.
Section 2.11 Defaulted Interest. If the Company defaults in a payment of
------------------
interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.11 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
ARTICLE III
Optional Redemption
Section 3.1 Right of Redemption. (a) The Notes will be redeemable, at the
-------------------
Company's option, in whole or in part, at any time or from time to time, on or
33
after August 15, 2001 and prior to maturity, upon not less than 30 nor more than
60 days' prior notice mailed by first class mail to each Holder's last address
as it appears in the Security Register, at the Redemption Prices (expressed in
percentages of principal amount) set forth below, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date that is prior to
the Redemption Date to receive interest due on an Interest Payment Date), if
redeemed during the 12-month period commencing August 15, of the years set forth
below:
Redemption
Year Price
---- -------------
2001................................ 105.81%
2002................................ 103.88%
2003................................ 101.94%
2004 and thereafter................. 100.00%
(b) In addition, at any time prior to August 15, 1999, the Company
may redeem up to one third of the Notes originally issued, at any time as a
whole or from time to time in part, with the proceeds of one or more Public
Equity Offerings or sales of Capital Stock (other than Redeemable Stock) to one
or more Strategic Equity Investors, each such Public Equity Offering or sale to
Strategic Equity Investors resulting in Net Cash Proceeds of $50 million or
more, at a redemption price (expressed as a percentage of principal amount) of
111.625%, plus accrued and unpaid interest and Liquidated Damages, if any, to
the Redemption Date, provided that after any such redemption at least two thirds
of the aggregate principal amount of Notes originally outstanding remains
outstanding and each such redemption is effected not more than 60 days after the
consummation of such Public Equity Offering or sale to Strategic Equity
Investors.
Section 3.2 Notices to Trustee. If the Company elects to redeem Notes
------------------
pursuant to Section 3.1, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the clause of
this Indenture pursuant to which the redemption shall occur.
34
The Company shall give each notice provided for in this Section 3.2 in an
Officers' Certificate at least 45 days before the Redemption Date (unless a
shorter period shall be satisfactory to the Trustee).
Section 3.3 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 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 listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem fair and
appropriate; provided that no Notes of $1,000 in principal amount or less shall
be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption. Notes in denominations of $1,000 in principal
amount may only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 in principal amount or any integral multiple thereof)
of Notes that have denominations larger than $1,000 in principal amount.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company and the Registrar promptly in writing of the Notes or portions of Notes
to be called for redemption.
Section 3.4 Notice of Redemption. At least 30 days but not more than 60
--------------------
days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
35
(iv) that Notes called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued and unpaid interest
and Liquidated Damages, if any, to the Redemption Date upon surrender of
the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion of
the principal amount (equal to $1,000 in principal amount at Stated
Maturity or any integral multiple thereof) of such Note to be redeemed and
that, on and after the Redemption Date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion thereof
will be reissued;
(vii) that, if any Note contains a CUSIP number as provided in
Section 2.10, no representation is being made as to the correctness of the
CUSIP number either as printed on the Notes or as contained in the notice
of redemption and that reliance may be placed only on the other
identification numbers printed on the Notes; and
(viii) the aggregate principal amount of Notes being redeemed.
At the Company's request (which request may be revoked by the Company at
any time prior to the time at which the Trustee shall have given such notice to
the Holders), made in writing to the Trustee at least 45 days (or such shorter
period as shall be satisfactory to the Trustee) before a Redemption Date, the
Trustee shall give the notice of redemption in the name and at the expense of
the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given.
36
Section 3.5 Effect of Notice of Redemption. Once notice of redemption is
------------------------------
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether or
not the Holder receives the notice. In any event, failure to give such notice,
or any defect therein, shall not affect the validity of the proceedings for the
redemption of Notes held by Holders to whom such notice was properly given.
Section 3.6 Deposit of Redemption Price. On or prior to 10:00 a.m. New
---------------------------
York City time on any Redemption Date, the Company shall deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, shall segregate and
hold in trust as provided in Section 2.4) money in immediately available funds
sufficient to pay the Redemption Price of and accrued and unpaid interest and
Liquidated Damages, if any, on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
Section 3.7 Payment of Notes Called for Redemption. If notice of
--------------------------------------
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued and unpaid interest and Liquidated Damages, if any, to such Redemption
Date, and on and after such date (unless the Company shall default in the
payment of such Notes at the Redemption Price and accrued and unpaid interest
and Liquidated Damages, if any, to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Notes and Liquidated Damages, if any, shall continue to
accrue), such Notes shall cease to accrue interest and Liquidated Damages, if
any. Upon surrender of any Note for redemption in accordance with a notice of
redemption, such Note shall be paid and redeemed by the Company at the
Redemption Price, together with accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date; provided that installments of interest
and Liquidated Damages whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders registered as such
37
at the close of business on the relevant Regular Record Date; provided, further,
that if a Redemption Date is after a Regular Record Date and on or prior to the
relevant Interest Payment Date, the accrued interest and Liquidated Damages, if
any, will be payable to the Holder of the redeemed Notes registered on the
relevant Regular Record Date.
Section 3.8 Notes Redeemed in Part. Upon surrender of any Note that is
----------------------
redeemed in part, the Trustee shall authenticate for the Holder a new Note equal
in principal amount to the unredeemed portion of such surrendered Note.
ARTICLE IV
Covenants
Section 4.1 Payment of Notes. The Company shall pay the principal of,
----------------
premium and Liquidated Damages, if any, and interest on the Notes on the dates
and in the manner provided in the Notes and this Indenture. An installment of
principal, premium and Liquidated Damages, if any, or interest shall be
considered paid on the date due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company, or any Affiliate of any of them) holds on
that date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the installment. As provided in Section
6.9, upon any bankruptcy or reorganization procedure relative to the Company,
the Trustee shall serve as the Paying Agent and conversion agent, if any, for
the Notes.
The Company shall pay interest on overdue principal, premium and Liquidated
Damages, if any, and interest on overdue installments of interest, to the extent
lawful, at the rate per annum specified in the Notes.
Section 4.2 Maintenance of Office or Agency. The Company will maintain an
-------------------------------
office or agency in the Borough of Manhattan, the City of New York where Notes
may be surrendered for registration of transfer or exchange or for presentation
for payment and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to
38
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 address of the Trustee set forth in Section 10.2.
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. 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 initially designates the Corporate Trust Office of the
Trustee as such office of the Company in accordance with Section 2.3 for the
purposes described in this Section.
Section 4.3 Limitation on Indebtedness. (a) The Company will not, and will
--------------------------
not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including Acquired Debt), provided, however, that the Company may Incur
Indebtedness and any of its Restricted Subsidiaries may issue shares of
Redeemable Stock if (i) no Default or Event of Default shall have occurred and
be continuing, and (ii) the Consolidated Leverage Ratio is no greater than 7 to
1, for any Incurrence from the Closing Date through the sixth anniversary of the
Closing Date, or 6 to 1 thereafter.
Notwithstanding the foregoing, as long as no Default or Event of Default
shall have occurred and be continuing, the Company and (except as specified
below) any Restricted Subsidiary may issue or Incur each and all of the
following:
(i) Indebtedness due and owing to government entities in
connection with telecommunications license fees or Indebtedness Incurred to
finance the payment of deposits with and license fees to the FCC in
connection with FCC license auctions;
(ii) Indebtedness Incurred by the Company or any Restricted
Subsidiary the proceeds of which are (or the credit support provided by any
such Indebtedness is) used to finance the development, construction,
expansion or operation of Telecommunications Assets;
39
(iii) Indebtedness Incurred by the Company or any Restricted
Subsidiary the proceeds of which are (or the credit support provided by any
such Indebtedness is) used to finance the acquisition of Telecommunications
Assets or the Capital Stock of a Telecommunications Business;
(iv) Indebtedness outstanding as of the date hereof;
(v) Indebtedness under one or more revolving credit or working
capital facilities in an aggregate principal amount outstanding or
available at any time not to exceed $100 million;
(vi) Indebtedness owed to the Company or any of its Restricted
Subsidiaries, provided that any subsequent issuance or transfer of any
Capital Stock which results in any such Restricted Subsidiary owed such
Indebtedness ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or another
Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness;
(vii) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding Indebtedness,
other than Indebtedness Incurred under clauses (v) and (viii) of this
Section 4.3 and any refinancing thereof in an amount not to exceed the
amount so refinanced or refunded (plus premiums, Liquidated Damages,
accrued interest, fees and expenses), provided that (x) Indebtedness
Incurred to refinance or refund the Notes or Indebtedness does not have a
higher relative seniority to the Notes than the Indebtedness being
refinanced or refunded, (y) the Average Life of such new Indebtedness is at
least equal to the remaining Average Life of the Indebtedness to be
refinanced or refunded and (z) Indebtedness Incurred to refinance
Indebtedness of the Company may only be Incurred by the Company;
40
(viii) Indebtedness (A) in respect of performance, surety or
appeal bonds provided in the ordinary course of business, (B) under
Currency Agreements and Interest Rate Agreements, provided that such
agreements do not increase the Indebtedness of the obligor outstanding at
any time other than as a result of fluctuation or interest rates or by
reason of fees, indemnities and compensation payable thereunder or (C)
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary of the Company
in a principal amount not to exceed the gross proceeds actually received by
the Company or any Restricted Subsidiary in connection with such
disposition; and
(ix) Indebtedness represented by the Notes.
(b) Notwithstanding any other provision of this Section 4.3 the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur pursuant to this Section 4.3 shall not be deemed to be exceeded due solely
to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section 4.3, (i) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (ii) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.9
described below shall not be treated as Indebtedness. For purposes of
determining compliance with this Section 4.3, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses.
Section 4.4 Limitation on Restricted Payments. The Company will not, and
---------------------------------
will not permit any Restricted Subsidiary to, directly or indirectly, (i)
declare or pay any dividend or make any distribution on its Capital Stock (other
than dividends or distributions payable solely in shares of its or such
Restricted Subsidiary's Capital Stock (other than Redeemable Stock) of the same
class held by
41
such holders or in options, warrants or other rights to acquire such shares of
Capital Stock) held by Persons other than (a) the Company, (b) any of its
Restricted Subsidiaries, or (c) any other shareholder of such Restricted
Subsidiaries (so long as the Company and its Restricted Subsidiaries receive
their pro rata share of such dividend or distribution based on their ownership
of such class or series of such Restricted Subsidiaries Capital Stock on which
such dividend or distribution is being made), (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of the Company or an
Unrestricted Subsidiary (including options, warrants or other rights to acquire
such shares of Capital Stock) held by any Person (other than the Company or a
Restricted Subsidiary), (iii) make any payments on indebtedness subordinate to
the Notes, or (iv) make any Investment, other than a Permitted Investment, in
any Person (such payments or any other actions described in clauses (i) through
(iv) being collectively "Restricted Payments") unless, at the time of, and after
giving effect to, the proposed Restricted Payment: (A) no Default or Event of
Default shall have occurred and be continuing, (B) the Company would be
permitted to incur additional indebtedness pursuant to the first paragraph of
Section 4.3, and (C) the aggregate amount expended for all Restricted Payments
(the amount so expended, if other than in cash, to be determined in good faith
by the Board of Directors, whose determination shall be conclusive and evidenced
by a Board Resolution) after the date of the Indenture shall not exceed the sum
of (1) the amount by which Consolidated EBITDA exceeds 1.5 times Consolidated
Interest Expense for the period from the Closing Date through the end of the
last completed fiscal quarter for which financial statements are available plus
(2) 100% of the aggregate Net Cash Proceeds received by the Company on or after
the Closing Date from the issuance and sale permitted by the Indenture of its
Capital Stock to a Person who is not a Subsidiary of the Company, or from the
issuance to a Person who is not a Subsidiary of the Company of any options,
warrants or other rights to acquire Capital Stock of the Company.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration such payment would
comply with the foregoing paragraph;
42
(ii) the redemption, repurchase, defeasance or other acquisition
or retirement for value of Indebtedness that is subordinated in right of
payment to the Notes (including, premium and Liquidated Damages, if any,
and accrued and unpaid interest) with the proceeds of, or in exchange for,
Indebtedness incurred under clause (vii) of the second paragraph of Section
4.3;
(iii) the repurchase, redemption or other acquisition of Capital
Stock of the Company or any Restricted Subsidiary or any other Person in
exchange for shares of Capital Stock (other than Redeemable Stock) of the
Company;
(iv) the acquisition of Indebtedness of the Company which is
subordinated in right of payment to the Notes in exchange for, or out of
the proceeds of, a substantially concurrent offering of shares of the
Capital Stock of the Company (other than Redeemable Stock);
(v) payments or distributions to dissenting stockholders
pursuant to applicable law in connection with a consolidation, merger or
transfer of assets that complies with the provisions of the Indenture
applicable to mergers, consolidations and transfers of all or substantially
all of the property and assets of the Company;
(vi) the distribution to shareholders of the Company or any
Restricted Subsidiary of shares of Capital Stock of any Unrestricted
Subsidiary or the distribution to shareholders of the Company of shares of
Capital Stock of any Subsidiary holding only the assets of the Company's
technology business, provided that in such latter case, after giving effect
to such transaction on a pro forma basis, (x) the Company would be
permitted to incur additional indebtedness pursuant to the first paragraph
of Section 4.3, or (y) the Company's Annualized Consolidated EBITDA would
not decrease, provided, further, in such latter case, that such Subsidiary
has working capital not in excess of $5 million; and
43
(vii) the purchase, redemption. acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company to the
extent required by FCC rules in order to prevent the loss or secure the
renewal or reinstatement of any license or franchise held by the Company or
any Restricted Subsidiary, provided that except in the case of clause (i)
of this paragraph no Default or Event of Default shall have occurred and be
continuing or occur as a consequence of the actions or payments set forth
therein. Each Restricted Payment permitted pursuant to this paragraph
(other than the Restricted Payment referred to in clause (ii) hereof) and
each payment pursuant to clause (vi) of the definition of Permitted
Investment shall be included in calculating the aggregate amount of
Restricted Payments for purposes of clause (C) of the first paragraph of
this Section 4.4.
Any Investment in a Subsidiary that becomes an Unrestricted Subsidiary
shall become a Restricted Payment made on such date in the amount of the greater
of (x) the book value of such Subsidiary on the date such Subsidiary becomes an
Unrestricted Subsidiary and (y) the fair market value of such Subsidiary on such
date as determined (A) in good faith by the Board of Directors if such fair
market value is determined to be less than $10 million and (B) by an investment
banking firm of national standing with high yield underwriting expertise if such
fair market value is determined to be in excess of $10 million. Any Restricted
Payment made by contribution or transfer of assets shall be valued in the amount
of the greater of (x) the book value of such asset on the date of transfer or
(y) the fair market value on such date as determined (A) in good faith by the
Board of Directors if such fair market value is determined to be less than $10
million and (B) by an investment banking firm of national standing with high
yield underwriting expertise if such fair market value is determined to be in
excess of $10 million.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which any calculations
required by this Section 4.4 were computed, which calculations may be based upon
the Company's latest available financial statements.
44
Section 4.5 Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
---------------------------------
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in the Indenture or any other
agreements in effect on the Closing Date, and any extensions, refinancings,
renewals or replacements of such agreements, provided that the encumbrances
and restrictions in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect to the Holders
than those encumbrances or restrictions that are then in effect and that
are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted Subsidiary
and existing at the time of such acquisition, which encumbrances or
restrictions are not applicable to any Person or the property or assets of
any Person other than such Person or the property or assets of such Person
so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.5, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a license or
contract or (B) existing by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or
45
assets of the Company or any Restricted Subsidiary not otherwise prohibited
by the Indenture; or
(v) with respect to a Restricted Subsidiary and imposed pursuant
to an agreement that has been entered into for the sale or disposition of
all or substantially all of the Capital Stock of, or property and assets of
such Restricted Subsidiary.
Nothing contained in this Section 4.5 shall prevent the Company or any
Restricted Subsidiary from (1) creating. incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 4.9, (2) restricting the sale or
other disposition of property or assets of the Company or any of its Restricted
Subsidiaries that secure Indebtedness of the Company or any of its Restricted
Subsidiaries, or (3) restricting the payment of dividends or distributions or
other disposition of property or assets of or the making of loans by any
Restricted Subsidiary in connection with any financing for the
Telecommunications Business of such Restricted Subsidiary, provided that in the
case of clause (3) such restriction may be entered into only if at such time the
total amount, without duplication, of (i) Mirror Indebtedness owed by Restricted
Subsidiaries, less (ii) proceeds of such Mirror Indebtedness that are invested
in another Person, other than (x) Investments in other Restricted Subsidiaries
conducting no operations other than the holding of government licenses or (y)
Investments in Mirror Indebtedness of other Restricted Subsidiaries, plus (iii)
capital contributions to the Special Subsidiary, plus (iv) the cash and
Temporary Cash Investments held by the Company (not on a consolidated basis),
less (v) the outstanding principal amount of the August Notes, equals or exceeds
the outstanding principal amount of the Notes.
Section 4.6 Limitation on the Issuance and Sale of Capital Stock of
-------------------------------------------------------
Restricted Subsidiaries. The Company (a) will not permit any Restricted
-----------------------
Subsidiary to issue any Capital Stock (other than to the Company or a Restricted
Subsidiary) and (b) will not permit any Person (other than the Company or a
Restricted Subsidiary) to own any Capital Stock of any Restricted Subsidiary,
provided, however, that this covenant will not prohibit (i) the sale or other
disposition of all of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of the Indenture; (ii) the ownership by directors of
director's qualifying shares of Capital Stock of any Restricted Subsidiary, to
the extent
46
mandated by applicable law; (iii) the ownership of Capital Stock of a Restricted
Subsidiary issued and outstanding either (A) as of the Closing Date or (B) prior
to the time that such Person becomes a Restricted Subsidiary so long as such
Capital Stock was not issued in contemplation of such Person's becoming a
Restricted Subsidiary of the Company or otherwise being acquired by the Company;
(iv) the issuance of Capital Stock of a Restricted Subsidiary pursuant to an
employee stock option plan approved by the Boards of Directors of the Restricted
Subsidiary and the Company; or (v) the issuance or sale of Capital Stock of a
Restricted Subsidiary in a transaction not prohibited by Section 4.11, provided
that such Restricted Subsidiary will remain a Restricted Subsidiary, and only if
at the time of such sale, the total amount, without duplication, of (i) Mirror
Indebtedness owed by Restricted Subsidiaries, less (ii) proceeds of such Mirror
Indebtedness that are invested in another Person, other than (x) Investments in
other Restricted Subsidiaries conducting no operations other than the holding of
government licenses or (y) Investments in Mirror Indebtedness of other
Restricted Subsidiaries, plus (iii) capital contributions to the Special
Subsidiary, plus (iv) the cash and Temporary Cash Investments held by the
Company (not on a consolidated basis), less (v) the outstanding principal amount
of the August Notes, equals or exceeds the outstanding principal amount of the
Notes.
Section 4.7 Limitation on Issuances of Guarantees by Restricted
---------------------------------------------------
Subsidiaries. The Company will not permit any Restricted Subsidiary to
------------
Guarantee or assume the payment of any Indebtedness of the Company unless (i)
(A) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a Guarantee of payment of the Notes by such
Restricted Subsidiary and (B) with respect to any Guarantee of Subordinated
Indebtedness of the Company by such Restricted Subsidiary, any such Guarantee
shall be subordinated to such Restricted Subsidiary's Guarantee with respect to
the Notes at least to the same extent as such Subordinated Indebtedness is
subordinated to the Notes and (ii) such Restricted Subsidiary waives any rights
of reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee until the Notes have been paid in
full. The incurrence by a Restricted Subsidiary as a primary obligor of any
Indebtedness that is guaranteed by the Company will not be deemed a Guarantee of
the Company's Indebtedness for purposes of this covenant.
47
Notwithstanding the foregoing, any Guarantee of the Notes or waiver of
rights created pursuant to the provisions described in the foregoing paragraph
will provide by their terms that they will be automatically and unconditionally
released and discharged upon the release by the holders of the Indebtedness of
the Company described in the preceding paragraph of their Guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness, except by or as a result of payment under
such Guarantee), at a time when (A) no other Indebtedness of the Company has
been Guaranteed by such Restricted Subsidiary or (B) the holders of all such
other Indebtedness which is Guaranteed by such Restricted Subsidiary also
release their Guarantee by such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness, except
by or as a result of payment under such Guarantee).
Section 4.8 Limitation on Transactions with Stockholders and Affiliates.
-----------------------------------------------------------
Except for any agreement entered into on or before the Closing Date, the Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any holder (or any Affiliate of such holder) of
10% or more of any Voting Stock of the Company or with any Affiliate of the
Company or any Restricted Subsidiary, except upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction with a
Person that is not such a holder or an Affiliate.
In addition to the foregoing, transactions with any holder (or any
Affiliate of such holder) of 10% or more of any Voting Stock (i) having a fair
market value or involving payments equal to or in excess of $3 million shall be
approved by a majority of the disinterested members of the Board of Directors
and (ii) having a fair market value or involving payments equal to or in excess
of $7 million shall require the Company or a Restricted Subsidiary to deliver to
the Trustee a written opinion of a nationally recognized investment banking firm
stating that the transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view. The foregoing limitation shall not
apply to (i) any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted
48
Subsidiaries; (ii) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company and any employment
agreement entered into by the Company or any Restricted Subsidiary in the
ordinary course of business; (iii) any Restricted Payments not prohibited by
Section 4.4, or (iv) any transaction pursuant to an agreement in effect on the
Closing Date.
Section 4.9 Limitation on Liens. The Company will not, and will not permit
-------------------
any Restricted Subsidiary to, create, Incur, assume or suffer to exist any Lien
on any of its assets or properties of any character, or any shares of Capital
Stock or Indebtedness of any Restricted Subsidiary, without making effective
provision for all of the Notes and all other amounts due under the Indenture to
be directly secured equally and ratably with (or, if the obligation or liability
to be secured by such Lien is subordinated in right of payment to the Notes,
prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Closing Date;
(ii) Liens granted after the Closing Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in
favor of the Holders;
(iii) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a
Restricted Subsidiary to secure Indebtedness owing to the Company or such
other Restricted Subsidiary;
(iv) Liens securing obligations under revolving credit or
working capital facilities under clause (v) of the second paragraph of
Section 4.3 provided that the aggregate amount of Indebtedness secured by
any such Liens shall not at any time exceed the amount of Indebtedness
permitted to be Incurred under clause (v) of the second paragraph of
Section 4.3;
49
(v) Liens securing Indebtedness under clauses (i), (ii) or (iii)
of the second paragraph of Section 4.3 granted on or after the Closing Date
on the Capital Stock or assets of any Restricted Subsidiary, including any
Lien granted in connection with a refinancing thereof, provided that Lien
does not extend to any additional assets not originally pledged pursuant to
such refinanced Indebtedness;
(vi) Liens on telecommunications licenses securing obligations
to government entities;
(vii) Liens on property of a person existing at the time such
person is merged into, or the assets of such person are acquired by, the
Company or any Restricted Subsidiary, provided that such Liens were in
existence prior to the contemplation of such merger or acquisition and do
not secure any property or assets of the Company or any of its Restricted
Subsidiaries other than the property or assets subject to the Liens prior
to such merger or acquisition; or
(viii) Permitted Liens.
Section 4.10 Limitation on Sale-Leaseback Transactions. The Company will
-----------------------------------------
not, and will not permit any Restricted Subsidiary to, enter into any sale-
leaseback transaction involving any of its assets or properties whether now
owned or hereafter acquired, whereby the Company or a Restricted Subsidiary
sells or transfers such assets or properties and then or thereafter leases such
assets or properties or any part thereof or any other assets or properties which
the Company or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred.
Section 4.11 Limitation on Asset Sales. The Company will not, and will
-------------------------
not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i)
the consideration received by the Company or such Restricted Subsidiary is at
least equal to the fair market value of the assets sold or disposed of and (ii)
at least 75% of the consideration received consists of cash or Temporary Cash
Investments, provided, however, that the amount of (x) any liabilities of the
Company or any
50
Restricted Subsidiary that are assumed by the transferee of any
such assets and (y) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are immediately
converted by the Company or such Restricted Subsidiary into cash, shall be
deemed to be Temporary Cash Investments (to the extent of the Temporary Cash
Investments received in such conversion) for the purposes of this clause (ii).
In the event and to the extent that the Net Cash Proceeds received by the
Company or any of its Restricted Subsidiaries from one or more Asset Sales
occurring after the Closing Date in any period of twelve consecutive months
exceed $5 million, then the Company shall or shall cause the relevant Restricted
Subsidiary to (1) within twelve months after the date Net Cash Proceeds so
received exceed such an amount (a) apply an amount equal to such excess Net Cash
Proceeds to permanently repay Indebtedness of the Company or any Restricted
Subsidiary or (b) invest an equal amount, or the amount not so applied pursuant
to clause (a) (or enter into a definitive agreement committing to so invest
within twelve months after the date of such agreement), in Telecommunications
Assets (or in a company engaged in a Telecommunications Business) and/or (2)
apply (no later than the end of the twelve-month period referred to in clause
(1)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause
(1)) as provided in the following paragraph of this Section 4.11. The amount of
such excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such twelve-month period as set forth in clause (1) of the
preceding sentence and not applied as so required by the end of such period
shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 4.11 equals or exceeds $5 million, the Company must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Notes equal to the Excess Proceeds on such date, at a purchase price equal to
100% of the principal amount of the Notes, plus, in each case accrued interest
(if any) to the Payment Date. Notwithstanding the foregoing, to the extent that
any amount of Excess Proceeds remains after completion of any such Offer to
Purchase, the Company may use such remaining amount for general corporate
purposes and the amount of Excess Proceeds shall be reset to zero.
51
Notwithstanding anything to the contrary contained in this Section 4.11,
the Company may distribute all or a portion of the capital stock of any
Subsidiary holding only the assets of the technology business of the Company to
the Company's shareholders, provided that after giving effect to such
transaction on a pro forma basis (A) the Company would be permitted to incur
additional indebtedness pursuant to the first paragraph of Section 4.3, or (B)
the Company's Annualized Consolidated EBITDA would not decrease.
Section 4.12 Repurchase of Notes upon a Change of Control. The Company
--------------------------------------------
shall commence within 30 days of the occurrence of a Change of Control and
consummate an Offer to Purchase for all Notes then outstanding, at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest and
Liquidated Damages, if any, to the Payment Date.
Section 4.13 Limitation on Use of Proceeds. The Company shall use the net
-----------------------------
proceeds from the offering of the Notes as described in the Offering Memorandum
with respect to the Notes dated November 21, 1996.
Section 4.14 Existence. Subject to Articles IV and V of this Indenture,
---------
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
licenses and franchises of the Company and each such Subsidiary; provided that
the Company shall not be required to preserve any such right, license or
franchise, or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole; and provided
further that any Restricted Subsidiary may consolidate with, merge into, or
sell, convey, transfer, lease or otherwise dispose of all or part of its
property and assets to the Company or any Wholly Owned Restricted Subsidiary.
Section 4.15 Payment of Taxes and Other Claims. The Company will pay or
---------------------------------
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the
52
Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a lien upon the property of the Company or
any such Subsidiary; provided that the Company shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established.
Section 4.16 Maintenance of Properties and Insurance. The Company will
---------------------------------------
cause all properties used or useful in the conduct of its business or the
business of any Restricted Subsidiary and material to the Company and its
Restricted Subsidiaries taken as a whole, to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
adequate for the level or stage of the Company's or any Restricted Subsidiary's
business and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
that nothing in this Section 4.16 shall prevent the Company or any such
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the board of directors
of such Restricted Subsidiary having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance against loss or damage of the kinds
customarily insured against by corporations similarly situated and owning like
properties, including, but not limited to, products liability insurance and
public liability insurance, with reputable insurers or with the government of
the United States of America, or an agency or instrumentality thereof, in such
amounts, with such deductibles and by such methods as the Company in good faith
shall determine to be reasonable and appropriate in the circumstances.
Section 4.17 Compliance Certificates. (a) The Company shall deliver to
-----------------------
the Trustee, within 90 days after the end of the last fiscal quarter of each
year, an
53
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year. Such certificate shall
comply with the applicable provisions of the TIA. If any of the signers of the
Officers' Certificate have knowledge of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its status.
The first certificate to be delivered pursuant to this Section 4.17(a) shall be
for the first fiscal year ending after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days after
the end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the Notes
as they relate to accounting matters, (ii) that they have read the most recent
Officers' Certificate delivered to the Trustee pursuant to paragraph (a) of this
Section 4.17 and (iii) whether, in connection with their audit examination,
anything came to their attention that caused them to believe that the Company
was not in compliance with any of the terms, covenants, provisions or conditions
of Article IV and Section 5.1 of this Indenture as they pertain to accounting
matters and, if any Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof; provided that such
independent certified public accountants shall not be liable in respect of such
statement by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards
in effect at the date of such examination.
(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 which action the Company is taking or proposes to take with
respect thereto.
Section 4.18 Commission Reports and Reports to Holders. The Company shall
-----------------------------------------
file with the Commission the annual, quarterly and other reports and other
information required by Section 13(a) or 15(d) of the Exchange Act, regardless
of whether such sections of the Exchange Act are applicable to the Company. If
the Commission will not accept such filings, the Company shall mail or cause to
be mailed copies of such reports to Holders and the Trustee within 15 days after
the
54
date it would have been required to file such reports with the Commission
had it been subject to such sections; provided, however, that the copies of such
reports mailed to Holders may omit exhibits, which the Company will supply to
any Holder at such Holder's request.
Section 4.19 Waiver of Stay, Extension or Usury Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium and Liquidated Damages, if any, or interest on the Notes
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or that may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 4.20 Limitation on Mirror Indebtedness. The Company will not
---------------------------------
forgive principal of or interest on Mirror Indebtedness, or reduce the interest
payable thereon, unless the remaining principal amount of Mirror Indebtedness
owed by Restricted Subsidiaries to the Company, plus cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes. The Company shall not need to
maintain Mirror Indebtedness if the conditions requiring Mirror Indebtedness no
longer exist.
Section 4.21 Escrow Account. The Company shall, on the date of this
--------------
Indenture, enter into the Escrow Agreement and, pursuant thereto, shall place
the Initial Escrow Amount (as defined in the Escrow Agreement) in the Escrow
Account held by the Escrow Agent for the benefit of the Trustee, for the ratable
benefit of the Noteholders. The Trustee is hereby authorized and directed to
enter into and deliver the Escrow Agreement and to perform its obligations and
duties hereunder.
Section 4.22 Limitation on Activities of the Special Subsidiary. The
--------------------------------------------------
Company shall not permit the Special Subsidiary to conduct any business or
55
operations other than the making of Temporary Cash Investments and investments
in Mirror Indebtedness of Restricted Subsidiaries, the holding of Temporary Cash
Investments, Mirror Indebtedness and cash and payment of dividends or
distributions to the Company. Without limiting the foregoing, the Company shall
not permit the Special Subsidiary to make any Investment (other than Temporary
Cash Investments and investments in Mirror Indebtedness of Restricted
Subsidiaries), make any Restricted Payment, Incur any Indebtedness, or issue any
Equity Interest or Capital Stock except to the Company. The Company shall not
sell any Equity Interest or Capital Stock of the Special Subsidiary or designate
the Special Subsidiary an Unrestricted Subsidiary.
ARTICLE V
Successor Corporation
Section 5.1 When Company May Merge, Etc. The Company shall not
----------------------------
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company unless: (i) the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume
by a supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under the Indenture; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and (iii) immediately after
giving effect to such transaction on a pro forma basis, the Consolidated Net
Worth of the Company or any entity or person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made will be at least equal to
the Consolidated Net Worth of the Company before such transaction.
ARTICLE VI
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Default and Remedies
Section 6.1 Events of Default. An "Event of Default" shall occur with
----------------- ----------------
respect to the Notes if:
(a) defaults in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable at Stated Maturity, upon
acceleration, redemption or otherwise;
(b) defaults in the payment of interest or Liquidated Damages, if
any, on any Note when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) defaults in the performance or breach of the provisions of
Article V or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.12;
(d) defaults in the performance of or breaches of any covenant or
agreement of the Company in the Indenture or under the Notes (other than a
default specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes;
(e) there occurs with respect to any issue or issues of Indebtedness
of the Company or any Significant Subsidiary having an outstanding principal
amount greater than $10 million in the aggregate for all such issues of all such
Persons, whether such Indebtedness now exists or shall hereafter be created, (A)
an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and/or (B) the
failure to make a principal payment and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance or
indemnification by a Person other than the Company or a Restricted Subsidiary,
which indemnity party is solvent and has acknowledged responsibility) (treating
any deductibles, self-insurance or retention as not so covered) for the payment
of
57
money greater than $10 million in the aggregate for all such final judgments
or orders shall be rendered against the Company or any Significant Subsidiary
and shall not be paid or discharged or bonded over, and there shall be any
period of 30 consecutive days following entry of the final judgment or order
that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged or bonded over to exceed $10 million
during which a stay of enforcement of such final judgment or order by reason of
a pending appeal or otherwise shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant Subsidiary in
an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.
Section 6.2 Acceleration. If an Event of Default (other than an Event of
------------
Default specified in clause (g) or (h) of Section 6.1 that occurs with respect
to the Company) occurs and is continuing under the Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal amount of, premium and Liquidated Damages, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of
58
acceleration, such principal amount of, premium and Liquidated Damages, if any,
and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
of Section 6.1 has occurred and is continuing, such declaration of acceleration
shall be automatically rescinded and annulled if the event of default triggering
such Event of Default pursuant to clause (e) shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of the
relevant Indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (g) or (h) above
occurs with respect to the Company, the principal amount of, premium and
Liquidated Damages, if any, and accrued interest on the Notes then outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration, but before a judgment
or decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes, by
written notice to the Company and to the Trustee may waive all past Defaults and
rescind and annul such declaration of acceleration and its consequences if (a)
the Company has paid or deposited with the Trustee a sum sufficient to pay (i)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due to the Trustee pursuant to Section 7.6
hereof, (ii) all overdue interest on all Notes, (iii) the principal of and
premium and Liquidated Damages, if any, on any Securities that have become due
otherwise than by such declaration or occurrence of acceleration and interest
thereon at the rate prescribed therefor by such Notes, and (iv) to the extent
that payment of such interest is lawful, interest upon overdue interest, if any,
at the rate prescribed therefor by such Notes, (b) all existing Events of
Default, other than the nonpayment of the principal amount of, premium and
Liquidated Damages, if any, and interest on the Notes that have become due
solely by such declaration of acceleration have been cured or waived and (c) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
Section 6.3 Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium and Liquidated
Damages,
59
if any, or interest on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, 6.7 and 9.2,
-----------------------
the Holders of at least a majority in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium and Liquidated Damages, if any, or interest on any Note as
specified in clause (a) or (b) of Section 6.1 (including in connection with an
Offer to Purchase) or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Note affected. 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 Event of Default or impair any right
consequent thereto.
Section 6.5 Control by Majority. The Holders of at least a majority in
-------------------
aggregate principal amount of the outstanding Notes, by notice to the Trustee,
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 the Trustee; provided that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders
of Notes pursuant to this Section 6.5.
Section 6.6 Limitation on Suits. A Holder may not institute any
-------------------
proceedings, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default;
60
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes have not given the
Trustee a direction that is inconsistent with such written request.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any
------------------------------------
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium or Liquidated Damages, if any, or interest
on such Holder's Note on or after the respective due dates expressed on such
Note (including in a notice with respect to 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 in payment
--------------------------
of principal, premium and Liquidated Damages, if any, or interest specified in
clause (a) or (b) of Section 6.1 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor of the Notes for the whole amount of principal,
premium and Liquidated Damages, if any, and accrued interest remaining unpaid,
together with interest on overdue principal, premium and Liquidated Damages, if
any, and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate specified in the
Notes, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the
61
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee pursuant to
Section 7.6 hereof.
Section 6.9 Trustee May File Proofs of Claim. The Trustee may file such
--------------------------------
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.6)
and the Holders allowed in any judicial proceedings relative to the Company (or
any other obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.6. Nothing herein contained shall be deemed to empower
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 thereof, 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 VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.6, including
payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the reasonable costs and expenses of
collection;
Second: to Holders for amounts then due and unpaid for principal
amount of, premium and Liquidated Damages, if any, and interest on the
Notes in respect of which or for the benefit of which such money has been
62
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal, premium and
Liquidated Damages, if any, and interest, respectively; and
Third: to the Company or any other obligors of the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, 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 Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 of this Indenture, or a suit
by Holders of more than 10% in principal amount of the outstanding Notes.
Section 6.12 Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.13 Rights and Remedies Cumulative. Except as otherwise provided
------------------------------
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Notes in Section 2.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
63
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14 Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article VI or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE VII
Trustee
Section 7.1 Rights of Trustee. (a) Except during the continuance of an
-----------------
Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth and correctness of the statements and
certificates or opinions furnished to it and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would
64
exercise or use under the circumstances in the conduct of such person's own
affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the
outstanding Notes, relating to the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes.
(d) Subject to TIA Sections 315(a) through (d):
(i) the Trustee may rely upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 10.4. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion;
65
(iii) 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;
(iv) 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 its
rights or powers; provided that the Trustee's conduct does not constitute
negligence or bad faith;
(v) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed), may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(vii) the Trustee may consult with counsel and the advice of such
counsel or any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(viii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of
66
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(ix) the Trustee may execute any of the trusts or powers
hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(x) the Trustee may conclusively rely as to the identity and
addresses of Holders and other matters contained therein on the register of
the Notes maintained by the Registrar pursuant to Section 2.3 hereof and
shall not be affected by notice to the contrary; and
(xi) 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.
Section 7.2 Individual Rights of Trustee. The Trustee, in its individual
----------------------------
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to TIA Sections 310(b) and 311.
Section 7.3 Trustee's Disclaimer. The Trustee (i) shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, (ii) shall not be accountable for the Company's use
of the proceeds from the Notes, (iii) shall not be responsible for the use or
application of any money received by the Escrow Agent or any Paying Agent other
than the Trustee, and (iv) shall not be responsible for any statement in this
Indenture, including the recitals contained herein, or in any document issued in
connection with the sale of the
67
Notes or the Exchange Offer, or in the Notes other than its certificate of
authentication.
Section 7.4 Notice of Default. If any Default or any Event of Default
-----------------
occurs and is continuing and if such Default or Event of Default is known to the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent
provided in TIA Section 313(c) notice of the Default or Event of Default within
90 days after it occurs, unless such Default or Event of Default has been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders.
The Trustee shall not be deemed to have knowledge of any Default or Event
of Default except (i) a default described in Section 6.1(a) or (b) so long as
the Trustee is the Paying Agent or (ii) any Default or Event of Default of which
the Trustee shall have received written notification or a Responsible Officer
shall have obtained actual knowledge.
Section 7.5 Reports by Trustee to Holders. Within 60 days after each June
-----------------------------
30, beginning with June 30, 1997, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such June 30, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of Notes
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 or of any delisting thereof.
Section 7.6 Compensation and Indemnity. The Company shall pay to the
--------------------------
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee 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, expenses and
68
advances incurred or made by it in addition to 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 for, and hold it harmless against,
any loss or liability or expense (including, without limitation, reasonable
attorneys' fees) incurred by it without negligence or bad faith on its part in
connection with the acceptance or administration of this Indenture and its
duties under this Indenture and the Notes, including the costs and expenses of
defending itself against any claim or liability and of complying with any
process served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the Notes.
The Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. 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 reasonable fees and expenses of such counsel.
The Company need not pay for any settlements made without its consent; provided
that such consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnity against any loss or liability incurred by the
Trustee through negligence or bad faith.
The Trustee shall have a claim prior to the Notes on all money or property
held or collected by the Trustee, in its capacity as Trustee, for any amount
owing it pursuant to this Section 7.6, except money or property held in trust to
pay principal of, premium and Liquidated Damages, if any, and interest on
particular Notes.
If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (g) or (h) of Section 6.1, the expenses
and the compensation for the services (including the reasonable fees and
expenses of its agents and counsel) will be intended to constitute expenses of
administration under Title 11 of the United States Bankruptcy Code or any
applicable federal or state law for the relief of debtors.
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 this Section 7.6 out of the estate in any such
69
proceeding, shall be denied for any reason, other than solely because of the
misconduct of the Trustee or its Agents, 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.
The provisions of this Section 7.6 shall survive the resignation or removal
of the Trustee and the termination of this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
Section 7.7 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
7.7.
The Trustee may resign by so notifying the Company in writing at least 30
days prior to the date of the proposed resignation. The Holders of a majority
in aggregate principal amount of the outstanding Notes may remove the Trustee by
so notifying the Trustee in writing and may appoint a successor Trustee with the
consent of the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.9;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the office
of the Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the outstanding Notes may appoint
a
70
successor Trustee to replace the successor Trustee appointed by the Company.
If the successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate principal amount of the outstanding Notes may
petition any court of competent jurisdiction for 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. Immediately after the delivery of
such written acceptance, subject to the lien provided in Section 7.6, (i) the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee
shall mail notice of its succession to each Holder.
If the Trustee fails to comply with Section 7.9, any Holder who satisfies
the requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect provided in this Section.
Notwithstanding replacement of the Trustee pursuant to this Section 7.7,
the Company's obligation under Section 7.6 shall continue for the benefit of the
retiring Trustee.
Section 7.8 Successor Trustee by Merger, Etc. If the Trustee consolidates
---------------------------------
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
Section 7.9 Eligibility. Any Trustee serving hereunder shall be a bank or
-----------
trust company, within or without the state, which is authorized by law to
perform all of the duties imposed upon it hereby and which either (i) has a
reported capital and surplus aggregating at least $25,000,000 or (ii) is a
wholly owned subsidiary
71
of a bank, a trust company or a bank holding company having a reported capital
and surplus aggregating at least $25,000,000, and shall at all times satisfy the
requirements of TIA Section 310(a)(1).
Section 7.10 Money Held in Trust. The Trustee shall not be liable for
-------------------
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article VIII of this Indenture.
ARTICLE VIII
Discharge of Indenture
Section 8.1 Termination of Company's Obligations. Except as otherwise
------------------------------------
provided in this Section 8.1, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes that have been replaced) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder; or
(ii) (A) the Notes have become due and payable, mature within
one year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
solely for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of
any reinvestment of any interest thereon, to pay principal, premium and
Liquidated Damages, if any, and interest on the Notes to maturity or
72
redemption, as the case may be, and to pay all other sums payable by it
hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D) such
deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound and (E) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Indenture have
been complied with.
With respect to the foregoing clause (i), the Company's obligations under
Section 7.6 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.11, 4.1, 4.2, 7.6,
7.7, 8.4, 8.5 and 8.6 shall survive until the Notes are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.6, 8.4, 8.5 and 8.6
shall survive. After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
Section 8.2 Defeasance and Discharge of Indenture. The Company will be
-------------------------------------
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the date of the deposit referred to
in clause (A) of this Section 8.2, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same, except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii) the
Company's obligations under Section 4.2, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Holders as
beneficiaries of this Indenture with respect to the property so deposited with
the Trustee payable to all or any of them, provided that the following
conditions shall have been satisfied:
(A) the Company has deposited with the Trustee, in trust,
money and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof
73
in accordance with their terms will provide, not later than one day before
the due date of any payment referred to in this clause (A), money in an
amount sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee to pay the principal of, premium and Liquidated
Damages, if any, and accrued interest on the Notes on the Stated Maturity
of such payments in accordance with the terms of this Indenture and the
Notes and shall have irrevocably instructed the Trustee to apply such money
to the payment of such principal, premium and Liquidated Damages, if any,
and interest;
(B) the Company has delivered to the Trustee (i) either (x)
an Opinion of Counsel to the effect that Holders will not recognize income,
gain or loss for federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.2 and will be subject to
federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit, defeasance and
discharge had not occurred, which Opinion of Counsel must be based upon
(and accompanied by a copy of) a ruling of the Internal Revenue Service to
the same effect unless there has been a change in applicable federal income
tax law after the date of the Indenture such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel
and (ii) an Opinion of Counsel to the effect that the creation of the
defeasance trust does not violate the Investment Company Act of 1940 and
after the passage of 123 days following the deposit, the trust fund will
not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute;
(C) immediately after giving effect to such deposit on a
pro forma basis no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall
have occurred and be continuing on the date
74
of such deposit or during the period ending on the 123rd day after the date
of such deposit, and such deposit shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(D) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result of
such deposit, defeasance and discharge; and
(E) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 have been complied with.
Section 8.3 Defeasance of Certain Obligations. The Company may omit to
---------------------------------
comply with any term, provision or condition set forth in clause (iii) of
Section 5.1 and Sections 4.3 through 4.17, in each case with respect to the
outstanding Notes if:
(i) the Company has deposited with the Trustee, in trust, money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment referred to in
this clause (i), money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee to pay the principal
of, premium and Liquidated Damages, if any, and accrued interest on the
Notes on the Stated Maturity of such payments in accordance with the terms
of this Indenture and the Notes and shall have irrevocably instructed the
Trustee to apply such money to the payment of such principal, premium,
Liquidated Damages and interest;
75
(ii) immediately after giving effect to such deposit on a pro
forma basis no Event of Default, or event that after the giving of notice
or lapse of time or both would become an Event of Default, shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such deposit
shall not result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(iii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust does
not violate the Investment Company Act of 1940, (B) the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred and (C) after the passage of 123 days following the deposit,
the trust funds will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company under either
such statute;
(iv) at such time the Notes are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.3 have been complied with.
Section 8.4 Application of Trust Money. Subject to Sections 8.5 and 8.6,
--------------------------
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obli-
76
gations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case may
be, and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium and Liquidated Damages, if any, and interest on the Notes;
but such money need not be segregated from other funds except to the extent
required by law.
Section 8.5 Repayment to Company. Subject to Sections 7.6, 8.1, 8.2 and
--------------------
8.3, the Trustee and the Paying Agent shall promptly pay to the Company upon
request set forth in an Officers' Certificate any excess money held by them at
any time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium and
Liquidated Damages, if any, or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
--------
payment may cause to be published at the expense of the Company once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
such money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to
-------------
apply any money or U.S. Government Obligations in accordance with Section 8.1,
8.2 or 8.3, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.1, 8.2 or 8.3, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.1, 8.2 or 8.3,
as the case may be; provided that, if the Company has made any payment of
principal of, premium and Liquidated Damages, if any, or interest on any Notes
because of the
77
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments, Supplements and Waivers
Section 9.1 Without Consent of Holders. The Company, when authorized by a
--------------------------
Board Resolution of its Board of Directors, and the Trustee may amend or
supplement this Indenture or the Notes or the Escrow Agreement without notice to
or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(6) to add one or more subsidiary guarantees on the terms required by this
Indenture; or
(7) to make any change that does not adversely affect the rights of any
Holder.
Section 9.2 With Consent of Holders. Subject to Sections 6.4 and 6.7 and
-----------------------
without prior notice to the Holders, the Company, when authorized by its Board
of Directors (as evidenced by a Board Resolution), and the Trustee may amend
this Indenture and the Notes and the Escrow Agreement with the written consent
of the
78
Holders of not less than a majority of the aggregate principal amount of the
Notes then outstanding, and the Holders of not less than a majority of the
aggregate principal amount of the Notes then outstanding by written notice to
the Trustee may waive future compliance by the Company with any provision of
this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected, an amendment of waiver, including a waiver
pursuant to Section 6.4, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount or premium and Liquidated
Damages, if any, or interest on, any Note;
(iii) change the place or currency of payment of principal of,
or premium and Liquidated Damages, if any, or interest on, any Note;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity (or, in the case of redemption,
on or after the Redemption Date) of any Note;
(v) reduce the above-stated percentage of outstanding Notes the
consent of whose Holders is necessary to modify or amend this Indenture;
(vi) waive a default in the payment of principal of, premium and
Liquidated Damages, if any, or interest on the Notes;
(vii) reduce the percentage of aggregate principal amount of
outstanding Notes the consent of whose Holders is necessary for waiver of
compliance with certain provisions of the Indenture or for waiver of
certain default; or
79
(viii) modify any of the provisions of this Section 9.2, except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. 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 supplemental indenture or waiver.
Section 9.3 Revocation and Effect of Consent. Until an amendment or
--------------------------------
waiver becomes effective, a consent to it by a Holder is an continuing consent
by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, 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 or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
of aggregate principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be
80
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it is of the type described in any of clauses (i) through
(vi) of Section 9.2. In case of an amendment or waiver of the type described in
clauses (i) through (vi) of Section 9.2, the amendment or waiver shall bind each
Holder who has consented to it and every subsequent Holder of a Note that
evidences the same indebtedness as the Note of the consenting Holder.
Section 9.4 Notation on or Exchange of Notes. If an amendment, supplement
--------------------------------
or waiver changes the terms of a Note, the Trustee may require the Holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note about the changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Note thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
--------------------------------
entitled to receive, and shall be fully protected in relying upon, in addition
to the documents required by Section 10.3 hereof, an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article IX is authorized or permitted by this Indenture. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.6 Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article IX shall conform to the requirements
of the TIA as then in effect.
ARTICLE X
81
Miscellaneous
Section 10.1 Trust Indenture Act. This Indenture is subject to the
-------------------
provisions of the TIA that are required to be a part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
Section 10.2 Notices. Any notice or communication shall be sufficiently
-------
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery addressed as follows:
if to the Company:
-----------------
Omnipoint Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with (in the case of any notice under Article VI) a copy to: (which
-----------------------------------------------------------
shall not constitute notice)
Piper & Marbury, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
if to the Trustee:
-----------------
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other 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 answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class mail
(certified or registered, return receipt requested) to its address shown on the
register kept by the Registrar and shall be sufficiently given to such Holder if
so mailed or delivered within the time presented. 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. Except for a
notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.2, it is duly given, whether or not the
addressee receives it.
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 10.3 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, the Company shall furnish to the Trustee:
83
(i) an Officers' Certificate reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel reasonably satisfactory to the
Trustee stating that, in the opinion of such Counsel, all such conditions
precedent have been complied with.
Section 10.4 Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained
in such certificate or opinion is based;
(iii) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such other
opinions as the Trustee may reasonably request; provided, however, that,
with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 10.5 Acts of Holders. (a) Any request, demand, authorization,
---------------
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
84
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The ownership of Notes shall be proved by the Security Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future Holder
of the same Note or the Holder of every Note issued upon the transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 10.6 Rules by Trustee, Paying Agent or Registrar. The Trustee may
-------------------------------------------
make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for is functions.
Section 10.7 Payment Date Other Than a Business Day. If an Interest
--------------------------------------
Payment Date, Redemption Date, Payment Date for an Offer to Purchase, Stated
Maturity or date of maturity of any Note shall not be a Business Day at any
place of payment, then payment of principal of, premium and Liquidated Damages,
if any, or interest on such Note, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day at such place of
payment with the same force and effect as if made on the Interest Payment Date,
Payment Date for an Offer to Purchase, or Redemption Date, or at the Stated
Maturity or date of maturity of such Note; provided that no interest shall
accrue for the period from and after such Interest Payment Date, Payment Date
for an Offer to Purchase, Redemption Date, Stated Maturity or date of maturity,
as the case may be.
Section 10.8 Governing Law. This Indenture and the Notes shall be
-------------
governed by the laws of the State of New York. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
85
York in any action or proceeding arising out of or relating to this Indenture or
the Notes.
Section 10.9 No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.10 No Recourse Against Others. No recourse for the payment of
--------------------------
the principal of, premium and Liquidated Damages, if any, or interest on any of
the Notes, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any of the Notes, or because of the creation
of any Indebtedness represented thereby, shall be had against any incorporator
or against any past, present or future partner, shareholder, other equityholder,
officer, director, employee or controlling person, as such, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and a consideration for, the execution of this Indenture and the
issue of the Notes.
Section 10.11 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 successor.
Section 10.12 Duplicate 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 10.13 Separability. 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 10.14 Table of Contents, Headings, Etc. The Table of Contents,
---------------------------------
Cross-Reference Table and headings of the Article and Sections of this Indenture
86
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
87
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
OMNIPOINT CORPORATION,
as Issuer
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
MARINE MIDLAND BANK,
as Trustee
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Corporate Trust Officer
88
EXHIBIT A
---------
[FACE OF NOTE]
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this certificate may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor Depositary or a
nominee of such successor Depositary.]/1/
[THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR ANY APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY
---------------
/1/ To be included in Global Notes registered in the name of DTC or its
nominee.
A-1
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.]/2/
Omnipoint Corporation
11 5/8% Series A Senior Notes due 2006
CUSIP ______
$_______
OMNIPOINT CORPORATION, a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ________, or its registered assigns, the
principal sum of ________________ ($______) on August 15, 2006.
---------------
/2/ To be included in Original Notes.
A-2
Interest Payment Dates: February 15 and August 15, commencing
February 15, 1997.
Regular Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Date: OMNIPOINT CORPORATION,
as Issuer
By
--------------------
Name:
Title:
By
--------------------
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of 11 5/8% Series A Senior Notes due 2006 described in the within-
mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By
--------------------
Authorized Signatory
A-4
[REVERSE SIDE OF NOTE]
OMNIPOINT CORPORATION
11 5/8% Series A Senior Note due 2006
(1) Principal and Interest. The Company will pay the principal of this
----------------------
Note on August 15, 2006.
The Company promises to pay interest on the principal amount of this Note
on each Interest Payment Date, as set forth below, at the rate per annum shown
above.
Interest will be payable semiannually in arrears (to the holders of record
of the Notes, as reflected in the Security Register at the close of business on
the February 1 or August 1 immediately preceding the Interest Payment Date) on
each Interest Payment Date, commencing February 15, 1997.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from December 2, 1996;
provided that, if there is no existing default in the payment of interest and if
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium and
Liquidated Damages, if any, and interest on overdue installments of interest, to
the extent lawful, at the rate borne by the Notes.
(2) Method of Payment. The Company will pay interest (except defaulted
-----------------
interest) on the principal amount of the Notes as provided above and Liquidated
Damages on each February 15 and August 15 to the persons who are Holders (as
A-5
reflected in the Security Register at the close of business on the February 1
and August 1 immediately preceding the Interest Payment Date), in each case,
even if the Note is cancelled on registration of transfer, registration of
exchange, redemption or repurchase after such Regular Record Date. With respect
to the payment of principal, the Company will make payment to the Holder that
surrenders this Note to a Paying Agent on or after August 15, 2006.
The Company will pay principal, premium and Liquidated Damages, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts at the office or agency of the
Company maintained for such purposes in the Borough of Manhattan, City of New
York. The Company, at its option, may pay principal, premium and Liquidated
Damages, if any, and interest by its check payable in such money mailed to a
Holder's registered address (as reflected in the Security Register), provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, premium and Liquidated Damages, if any, and interest
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. If an Interest
Payment Date is a date other than a Business Day at a place of payment, payment
may be made on the next succeeding day that is a Business Day with the same
force and effect as if made on the day such payment was due and in the case of
such payment no interest shall accrue for the intervening period.
(3) Paying Agent and Registrar. Initially, the Trustee will act as
--------------------------
authenticating agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without notice. The Company,
any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or co-Registrar.
(4) Indenture; Limitations. The Company issued the Notes under an
----------------------
Indenture dated as of December 2, 1996 (the "Indenture"), between the Company
and Marine Midland Bank, as trustee (the "Trustee"). Capitalized terms herein
are used as defined in the Indenture unless otherwise indicated. Reference is
made to the Indenture and the Trust Indenture Act for a full, complete and
detailed statement of the purposes for which the Notes are issued, the terms on
which the Notes are issued, a description of the security pledged and assigned
for payment of the Notes and the terms, provisions and conditions governing
payment of the Notes
A-6
and the provisions, among others, with respect to the nature and extent of the
rights, duties and obligations of the Trustee, the Paying Agent, the Registrar,
the authenticating agent, Holders and the Company. The holder of this Note, by
acceptance of this Note, is deemed to have agreed and consented to the terms and
provisions of the Indenture. 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. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
If any provision of this Note conflicts with the Indenture, the terms of the
Indenture control.
The Notes are general unsecured obligations of the Company. The Indenture
limits the original aggregate principal amount of the Notes to $250,000,000.
(5) Optional Redemption. The Notes will be redeemable, at the Company's
-------------------
option, in whole or in part, at any time or from time to time, on or after
August 15, 2001 and prior to maturity, upon not less than 30 nor more than 60
days' prior notice mailed by first class mail to each Holder's last address as
it appears in the Security Register, at the Redemption Prices (expressed in
percentages of principal amount) set forth below, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date that is prior to
the Redemption Date to receive interest due on an Interest Payment Date), if
redeemed during the 12-month period commencing August 15, of the years set forth
below:
Redemption Year Price
---------------- -----------
2001 105.81%
2002 103.88%
2003 101.94%
2004 and thereafter 100.00%
In addition, at any time prior to August 15, 1999, the Company may redeem
up to one-third of the Notes originally issued, at any time as a whole or from
time to time in part, with the proceeds of one or more Public Equity Offerings
or sales of Capital Stock (other than Redeemable Stock) to one or more Strategic
Equity Investors, each such Public Equity Offering or sale to Strategic
A-7
Equity Investors resulting in Net Cash Proceeds of $50 million or more, at a
redemption price (expressed as a percentage of principal amount) of 111.625%,
plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date, provided that after any such redemption at least two-thirds of
the aggregate principal amount of Notes originally outstanding remains
outstanding and each such redemption is effected not more than 60 days after the
consummation of such Public Equity Offering or sale to Strategic Equity
Investors.
If less than all of the Notes are to be redeemed at any time, the Trustee
will select the Notes, or portions thereof, for redemption 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 listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate. Notes in
denominations larger than $1,000 may be redeemed in part. Any notice mailed as
provided herein and in the Indenture will be conclusively presumed to have been
given whether or not actually received by any Holder. On and after the
Redemption Date, interest ceases to accrue on Notes or portions of Notes called
for redemption, unless the Company defaults in the payment of the Redemption
Price. A new Note in original amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon cancellation of the
original Note.
(6) Repurchase upon Change of Control and Asset Sale. The Company shall
------------------------------------------------
commence within 30 days of the occurrence of a Change of Control and consummate
an Offer to Purchase for all Notes then outstanding at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Payment Date. The Notes may also be subject
to an Offer to Purchase in connection with an Asset Sale. Any Note delivered
for payment of a purchase price shall be accompanied by an instrument in the
form of the Option of the Holder to Elect Purchase below.
(7) Denominations; Transfer; Exchange. The Notes are in registered form
---------------------------------
without coupons in denominations of $1,000 of principal amount and multiples of
$1,000 in excess thereof. A Holder may register the transfer or exchange of
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
(including a certificate in the form of the Certificate to be Delivered upon
A-8
Exchange or Registration of Transfer of Securities below) and to pay any taxes,
fees and/or other governmental charges required by law or permitted by the
Indenture. The Registrar need not register the transfer or exchange of any Notes
selected for redemption. Also, it need not register the transfer or exchange of
any Notes for a period of 15 days before the day of the mailing of a notice of
redemption of Notes selected for redemption.
(8) Persons Deemed Owners. A Holder shall be treated as the owner of a
---------------------
Note for all purposes.
(9) Unclaimed Money. If money for the payment of principal, premium and
---------------
Liquidated Damages, if any, or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
written request. After that, Holders entitled to the money must look to the
Company for payment, unless applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
(10) Defeasance and Discharge Prior to Redemption or Maturity. If the
--------------------------------------------------------
Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of, premium and Liquidated
Damages, if any, and accrued interest on the Notes to redemption or maturity,
and complies with certain other provisions of the Indenture relating thereto,
(i) the Company will be deemed to have paid and will be discharged from any and
all obligations in respect of the Notes or (ii) certain provisions set forth in
the Indenture will no longer be in effect with respect to the Notes.
(11) Amendment; Supplement; Waiver. Subject to certain exceptions, the
-----------------------------
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, and any existing default or compliance with any provision may be
waived with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make any
change that does not adversely affect the rights of any Holder.
A-9
(12) Restrictive Covenants. The Indenture imposes certain limitations on
---------------------
the ability of the Company and its Restricted Subsidiaries, among other things,
to (a) Incur additional Indebtedness, (b) make Restricted Payments, (c) use the
proceeds from Asset Sales, (d) suffer to exist restrictions on the ability of
Restricted Subsidiaries to make certain payments to the Company, (e) issue
Capital Stock of Restricted Subsidiaries, (f) engage in transactions with
certain stockholders and Affiliates, (g) suffer to exist or incur Liens, (h)
Guarantee Indebtedness of the Company or (i) merge, consolidate or transfer
substantially all of its assets. Within 90 days after the end of the last
fiscal quarter of each year, the Company shall deliver to the Trustee an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default under such restrictive covenants.
(13) Successor Persons. When a successor person or other entity assumes
-----------------
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
(14) Defaults and Remedies. An Event of Default is: (a) a default in
---------------------
payment of principal or premium, if any, on the Notes; (b) default in the
payment of interest or Liquidated Damages, if any, on the Notes for 30 days; (c)
failure by the Company for 30 days after notice to it to comply with any of its
other agreements in the Indenture; (d) certain events of bankruptcy or
insolvency as described in the Indenture; (e) certain final judgments which
remain undischarged as described in the Indenture; and (f) certain events of
default on other Indebtedness of the Company and/or one or more of its
Significant Subsidiaries as described in the Indenture.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding may, and the Trustee at the request of such
Holders shall, declare all the Notes to be due and payable. If a bankruptcy or
insolvency default with respect to the Company occurs and is continuing, the
Notes automatically become due and payable. Holders may not enforce the
Indenture or the Notes, or take any action with respect to any Event of Default
under the Indenture, or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain
A-10
limitations under the Indenture, Holders of at least a majority in principal
amount of the Notes then outstanding may direct in accordance with the
provisions of the Indenture the Trustee in its exercise of any trust or power,
including waiver of all past defaults, rescission and annulment of a declaration
of acceleration and its consequences and exercise of any right, remedy or power
available to the Trustee.
(15) Trustee Dealings with Company. The Trustee under the Indenture, in
-----------------------------
its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates as if it were not the Trustee.
(16) No Recourse Against Others. No incorporator or any past, present or
--------------------------
future partner, shareholder, other equity holder, officer, director, employee or
controlling person as such, of the Company or of any successor Person shall have
any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note expressly waives
and releases all such liability. The waiver and release are a condition of, and
part of the consideration for the issuance of the Notes.
(17) Authentication. This Note shall not be entitled to any right or
--------------
benefit under the Indenture, or be valid, or become obligatory for any purpose,
until the Trustee or authenticating agent signs the certificate of
authentication on the other side of this Note.
(18) Abbreviations. Customary abbreviations may be used in the name of a
-------------
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to Omnipoint Corporation,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
A-11
--------------------------------------------------------------------------------
ASSIGNMENT
I or we assign and transfer this Note to
---------------------------------------
--------------------------------------------------------------------------------
Print or type name, address and zip code of Assignee
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------
--------------------------------------------------
and irrevocably appoint
--------------------------------------------------------
, as agent,
---------------------------------------------------------------------
to transfer this Note on the books of the Company.
The agent may substitute another to act for him/her.
Date
------------------------------------------------
Signature Guarantee:
Signed
--------------------------------------------------------------------------------
(Sign here exactly as name appears on the other side of this Note)
--------------------------------------------------------------------------------
The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" as
defined by Rule 17Ad-15 under the Exchange Act.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section
4.11 or Section 4.12 of the Indenture, as applicable, check the box: [_].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.12 of the Indenture, as applicable, state
the principal amount to be purchased:
$____________.
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.12 of the Indenture, as applicable, please
provide instructions regarding delivery of and the Persons in whose name(s) the
unredeemed portion of such surrendered Note(s) should be registered, the address
of such Person(s) and appropriate delivery instructions.
Date:___________________________________________________________________________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
________________________________________________________________________________
The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution: as
defined by Rule 17Ad-15 under the Exchange Act.
--------------------------------------------------------------------------------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF SECURITIES
Re: 11 5/8% SERIES A SENIOR NOTES DUE 2006 OF OMNIPOINT CORPORATION
This certificate relates to $______ principal amount of Notes held in
definitive form by________________________________ (the "Transferor").
The Transferor has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Notes and, as provided in Section 2.5 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act because:
[_] Such Note is being registered for the Transferor's own account, without
transfer.
[_] Such Note is being transferred (a) to a person who the seller reasonably
believes is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, (b) in a
transaction meeting the requirements of Rule 144 under the Securities Act, (c)
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act or (d) in accordance with
another exemption from the registration requirements of the Securities Act, and
in the case of (d), this request for transfer is accompanied by an opinion of
counsel.
________________________________________________________________________________
[INSERT NAME OF TRANSFEROR]
By:_____________________________________________________________________________
A-13