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EXHIBIT 4.3
PHONETEL TECHNOLOGIES, INC.,
As Issuer,
THE SUBSIDIARY GUARANTORS
named on Schedule I hereto
AND
MARINE MIDLAND BANK,
As Trustee
INDENTURE
Dated as of December , 1996
$110,000,000
% SENIOR NOTES DUE 2006
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
--------------------------------------------------------------------------------
310(a)(1)........................................................ 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.**
(a)(4)..................................................... N.A.
(a)(5)..................................................... 7.10
(b)........................................................ 7.10
(c)........................................................ N.A.
311(a)........................................................... 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)........................................................... 2.05
(b)........................................................ 11.03
(c)........................................................ 11.03
313(a)........................................................... 7.06
(b)(1)..................................................... 7.06
(b)(2)..................................................... 7.06
(c)........................................................ 7.06; 11.02
(d)........................................................ 7.06
314(a)........................................................... 4.02; 4.03;
11.02
(b)........................................................ 4.18
(c)(1)..................................................... 11.04
(c)(2)..................................................... 11.04
(c)(3)..................................................... N.A.
(d)........................................................ 4.18
(e)........................................................ 11.05
(f)........................................................ N.A.
315(a)........................................................... 7.01
(b)........................................................ 7.05
(c)........................................................ 7.01
(d)........................................................ 7.01
(e)........................................................ 6.11
316(a)(last sentence)............................................ 2.09
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.04; 6.07
(c)........................................................ 2.13
317(a)(1)........................................................ 6.08
(a)(2)..................................................... 6.09
(b)........................................................ 2.04
318(a)........................................................... 11.01
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* This Cross-Reference Table is not part of the Indenture.
** Not applicable.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Other Definitions................................... 17
SECTION 1.03. Incorporation by Reference of TIA .................. 18
SECTION 1.04. Rules of Construction............................... 18
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating..................................... 18
SECTION 2.02. Execution and Authentication........................ 19
SECTION 2.03. Registrar; Paying Agent; Depositary................. 20
SECTION 2.04. Paying Agent to Hold Money in Trust................. 20
SECTION 2.05. Holder Lists........................................ 21
SECTION 2.06. Transfer and Exchange............................... 21
SECTION 2.07. Replacement Notes................................... 22
SECTION 2.08. Outstanding Notes................................... 22
SECTION 2.09. Treasury Notes...................................... 23
SECTION 2.10. Temporary Notes..................................... 23
SECTION 2.11. Cancellation........................................ 23
SECTION 2.12. Defaulted Interest.................................. 24
SECTION 2.13. Record Date......................................... 24
SECTION 2.14. CUSIP Number........................................ 24
SECTION 2.15. Book-Entry Provisions for Global Notes.............. 25
ARTICLE III
REDEMPTION
SECTION 3.01. Redemption Provisions............................... 26
SECTION 3.02. Notice to Trustee................................... 27
SECTION 3.03. Selection of Notes to Be Redeemed................... 27
SECTION 3.04. Notice of Redemption................................ 28
SECTION 3.05. Effect of Notice of Redemption...................... 29
SECTION 3.06. Deposit of Redemption Price......................... 29
SECTION 3.07. Notes Redeemed in Part.............................. 29
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest.......... 30
SECTION 4.02. Provision of Financial Statements................... 30
SECTION 4.03. Compliance Certificate.............................. 31
SECTION 4.04. Stay, Extension and Usury Laws...................... 32
SECTION 4.05. Limitation on Restricted Payments................... 32
SECTION 4.06. Corporate Existence................................. 34
SECTION 4.07. Limitation on Incurrence of Indebtedness............ 34
SECTION 4.08. Taxes............................................... 36
SECTION 4.09. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.............. 37
SECTION 4.10. Maintenance of Office or Agency..................... 38
SECTION 4.11. Change of Control................................... 38
SECTION 4.12. Special Offer upon Failure to Consummate Cherokee
Acquisition...................................... 40
SECTION 4.13. Limitation on Asset Sales........................... 42
SECTION 4.14. Limitation on Issuance and Sale of Preferred
Stock of Subsidiaries............................ 44
SECTION 4.15. Future Subsidiary Guarantors........................ 45
SECTION 4.16. Maintenance of Properties........................... 45
SECTION 4.17. Maintenance of Insurance............................ 45
SECTION 4.18. Deposit of Trust Funds with Trustee
Pending Consummation of Cherokee Acquisition..... 45
SECTION 4.19. Limitation on Transactions with Interested
Persons.......................................... 47
SECTION 4.20. Limitation on Lines of Business..................... 48
SECTION 4.21. Limitation on Liens................................. 49
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets............ 48
SECTION 5.02. Surviving Person Substituted........................ 49
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default................................... 49
SECTION 6.02. Acceleration........................................ 51
SECTION 6.03. Other Remedies...................................... 52
SECTION 6.04. Waiver of Past Defaults............................. 52
SECTION 6.05. Control by Majority of Holders...................... 52
SECTION 6.06. Limitation of Suits by Holders...................... 53
SECTION 6.07. Rights of Holders to Receive Payment................ 53
SECTION 6.08. Collection Suit by Trustee.......................... 53
SECTION 6.09. Trustee May File Proofs of Claim.................... 53
SECTION 6.10. Priorities.......................................... 54
SECTION 6.11. Undertaking for Costs............................... 55
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee................................... 56
SECTION 7.02. Rights of Trustee................................... 56
SECTION 7.03. Individual Rights of Trustee........................ 57
SECTION 7.04. Trustee's Disclaimer................................ 57
SECTION 7.05. Notice to Holders of Defaults and Events of Default. 57
SECTION 7.06. Reports by Trustee to Holders....................... 57
SECTION 7.07. Compensation and Indemnity.......................... 58
SECTION 7.08. Replacement of Trustee.............................. 59
SECTION 7.09. Successor Trustee by Merger, Etc.................... 60
SECTION 7.10. Eligibility; Disqualification....................... 60
SECTION 7.11. Preferential Collection of Claims Against Company... 60
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance......... 61
SECTION 8.02. Conditions to Defeasance............................ 62
SECTION 8.03. Application of Trust Money.......................... 63
SECTION 8.04. Repayment to Company................................ 63
SECTION 8.05. Indemnity for U.S. Government Obligations........... 63
SECTION 8.06. Reinstatement....................................... 64
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ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted
Without Consent of Holders....................... 64
SECTION 9.02. Amendments and Supplements Requiring
Consent of Holders .............................. 65
SECTION 9.03. Compliance with TIA................................. 66
SECTION 9.04. Revocation and Effect of Consents................... 66
SECTION 9.05. Notation on or Exchange of Notes.................... 67
SECTION 9.06. Trustee Protected................................... 67
ARTICLE X
SUBSIDIARY GUARANTEES
SECTION 10.01. Subsidiary Guarantees............................... 68
SECTION 10.02. Trustee to Include Paying Agents.................... 70
SECTION 10.03. Limits on Subsidiary Guarantees..................... 70
SECTION 10.04. Execution of Subsidiary Guarantee................... 70
SECTION 10.05. Stay, Extension and Usury Laws...................... 71
SECTION 10.06. Payment............................................. 71
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls........................ 71
SECTION 11.02. Notices............................................. 72
SECTION 11.03. Communication by Holders with Other Holders......... 73
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.. 74
SECTION 11.05. Statements Required in Certificate or Opinion....... 74
SECTION 11.06. Rules by Trustee and Agents......................... 74
SECTION 11.07. Legal Holidays...................................... 74
SECTION 11.08. No Recourse Against Others.......................... 75
SECTION 11.09. Counterparts........................................ 75
SECTION 11.10. Initial Appointments, Compliance Certificates....... 75
SECTION 11.11. Governing Law....................................... 75
SECTION 11.12. No Adverse Interpretation of Other Agreements....... 75
SECTION 11.13. Successors.......................................... 76
SECTION 11.14. Severability........................................ 76
SECTION 11.15. Third Party Beneficiaries........................... 76
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SECTION 11.16. Table of Contents, Headings, Etc.................... 76
SCHEDULE I ............SUBSIDIARY GUARANTORS EXISTING ON THE ISSUE DATE
EXHIBIT A ................................................FORM OF NOTE
EXHIBIT A-1 ..............FORM OF NOTATION ON NOTE RELATING TO GUARANTEE
EXHIBIT B ...............................FORM OF BOOK-ENTRY LEGEND AND
SCHEDULE OF EXCHANGES OF GLOBAL NOTE
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THIS INDENTURE, dated as of December , 1996, is by and among
(i) PhoneTel Technologies, Inc., an Ohio corporation (the "Company"), as issuer
of the % Senior Notes due 2006, (ii) each Subsidiary of the Company existing
on the Issue Date as set forth on Schedule I hereto and each of the Company's
Subsidiaries which becomes a guarantor of the Notes in compliance with Section
4.15 and executes a supplemental indenture in which such Subsidiary agrees to be
bound by the terms of this Indenture, as guarantors of the Company's obligations
under this Indenture and the Notes (each a "Subsidiary Guarantor"), and (iii)
Marine Midland Bank, as trustee (the "Trustee").
The Company, each Subsidiary Guarantor and the Trustee agree
as follows for the benefit of each other and for the equal and ratable benefit
of the holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person (the "Acquired Person") existing at the time
the Acquired Person merges with or into, or becomes a Subsidiary of, such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, the Acquired Person merging with or into, or becoming a
Subsidiary of, such specified Person.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") of any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, or co-registrar.
"Asset Acquisition" means (a) an Investment by the Company or
any Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person which constitute all
or substantially all of the assets of such Person or any division or line
(whether based on product or geography) of business of such Person or (c) the
acquisition by the Company or any Subsidiary of the Company of any public pay
telephones from any Person other than the manufacturer (or an Affiliate thereof
or special purpose finance
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entity related thereto) of such telephones in a transaction involving
consideration having a Fair Market Value equal to or greater than $250,000.
"Asset Sale" means (i) any sale, lease, conveyance or other
disposition by the Company or any Subsidiary of the Company of any assets
(including by way of a sale-and-leaseback) other than in the ordinary course of
business (provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company shall not be an "Asset Sale"
but instead shall be governed by the provisions of Section 5.01), or (ii) the
issuance or sale of Capital Stock of any Subsidiary of the Company, in each
case, whether in a single transaction or a series of related transactions, to
any Person (other than to the Company or a Subsidiary Guarantor), provided that
the term "Asset Sale" shall not include (i) any simultaneous exchange of public
pay telephones and related location agreements of the Company or any of its
Subsidiaries for public pay telephones and related location agreements of
another Person with equivalent Fair Market Value; provided that the number of
pay telephones so exchanged in any calendar year shall not exceed 10% of (A) the
sum of the number of pay telephones owned by the Company and its Subsidiaries on
January 1 of such year and the number of pay telephones acquired by the Company
and its Subsidiaries since January 1 of such year less (B) the number of pay
telephones sold by the Company and its Subsidiaries since January 1 of such
year, and (ii) any disposition or dispositions during any twelve-month period of
assets or property having a Fair Market Value of less than $250,000 in the
aggregate.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law relating
to bankruptcy, insolvency, receivership, winding up, liquidation, reorganization
or relief of debtors, or any amendment to, succession to or change in any such
law.
"Board of Directors" means the Company's board of directors
or, except with respect to clause (c) of the definition of a Change of Control,
any authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" of any Person means the
obligations to pay rent or other amounts under a lease of (or other Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which are required to be classified and accounted for as a capital lease
or liability on the face of a balance sheet of such Person in accordance with
GAAP. The amount of such obligations shall be the capitalized amount thereof in
accordance with GAAP and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
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"▇▇▇▇▇▇▇ ▇▇▇▇▇" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, of such Person, including any Preferred Stock.
"Cash Equivalents" means (i) marketable direct obligations
issued or guaranteed by the United States of America, or any governmental entity
or agency or political subdivision thereof (provided, that the full faith and
credit of the United States of America is pledged in support thereof) maturing
within one year of the date of purchase; (ii) commercial paper issued by
corporations, each of which shall have a consolidated net worth of at least $500
million, maturing within 180 days from the date of the original issue thereof,
and rated "P-1" or better by ▇▇▇▇▇'▇ Investors Service or "A-1" or better by
Standard & Poor's Ratings Service or an equivalent rating or better by any other
nationally recognized securities rating agency; (iii) certificates of deposit
issued or acceptances accepted by or guaranteed by any bank or trust company
organized under the laws of the United States of America or any state thereof or
the District of Columbia, in each case having capital, surplus and undivided
profits totalling more than $500 million, maturing within one year of the date
of purchase; and (iv) money market accounts with a bank or trust company of a
type described in clause (iii).
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than the Permitted Holders,
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person or group shall be deemed to have beneficial
ownership of all shares of Capital Stock that such person or group has the right
to acquire regardless of when such right is first exercisable), directly or
indirectly, of more than 35% of the total voting power represented by the
outstanding Voting Stock of the Company;
(b) the Company merges with or into another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person merges with or into
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where (x) the
outstanding Voting Stock of the Company is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee
corporation and (y) immediately after such transaction no "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
disregarding the Permitted Holders, is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group
shall be deemed to have beneficial ownership of all shares of Capital Stock that
such person or group has the right to acquire regardless of when such right is
first exercisable), directly or indirectly,
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of more than 35% of the total voting power represented by the outstanding Voting
Stock of the surviving or transferee corporation;
(c) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors of the
Company or whose nomination for election by the stockholders of the Company was
approved by (x) a vote of at least 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 (as described in
this clause (x) or in the following clause (y)) or (y) Permitted Holders that
are "beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) of a majority of the total voting power represented by the outstanding
Voting Stock of the Company) cease for any reason to constitute a majority of
the Board of Directors then in office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation.
"Cherokee Acquisition" means the acquisition by the Company of
all of the capital stock of Cherokee Communications Inc. ("Cherokee") pursuant
to the Agreement and Plan of Merger dated as of November 21, 1996, among the
Company, Cherokee, PhoneTel CCI, Inc. and all of the shareholders of Cherokee.
"Commission" means the Securities and Exchange Commission.
"Company" means PhoneTel Technologies, Inc., an Ohio
corporation, unless and until a successor replaces it in accordance with Article
V and thereafter means such successor.
"Concurrent Offering" means the public offering by the Company
of up to [ ] shares of its common stock, $.01 par value, as contemplated by the
related prospectus dated December , 1996, including the sale of any such shares
of common stock in connection with the exercise of any over-allotment options
granted to the underwriters of such public offering.
"Consolidated EBITDA" is defined to mean, for any period, the
sum of the amounts for such period of (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) income taxes, to the extent such amount was
deducted in calculating Consolidated Net Income (other than income taxes (either
positive or negative) attributable to extraordinary and non-recurring gains or
losses or sales of assets), (iv) depreciation expense, to the extent such amount
was deducted in calculating Consolidated Net Income, (v) amortization expense,
to the extent such amount was deducted in calculating Consolidated Net Income,
and (vi) all other non-cash items reducing Consolidated Net Income, less all
non-cash items increasing Consolidated Net Income, all as determined on a
consolidated basis for the Company and its
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Subsidiaries in conformity with GAAP; provided that, if any Subsidiary of the
Company is not a Wholly-Owned Subsidiary of the Company, Consolidated EBITDA
shall be reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Consolidated Net Income attributable
to such Subsidiary multiplied by (B) the quotient of (1) the number of shares of
outstanding common stock of such Subsidiary not owned on the last day of such
period by the Company or any of its Subsidiaries divided by (2) the total number
of shares of outstanding common stock of such Subsidiary on the last day of such
period.
"Consolidated Fixed Charge Coverage Ratio" means, on any
determination date (the "Transaction Date"), the ratio of (i) Consolidated
EBITDA for the four fiscal quarters for which financial information in respect
thereof is available immediately prior to such Transaction Date (the "Reference
Period") to (ii) the aggregate Consolidated Fixed Charges during such Reference
Period. In making the foregoing calculation, (A) pro forma effect shall be given
to (1) any Indebtedness Incurred subsequent to the end of the Reference Period
and prior to the Transaction Date, (2) any Indebtedness Incurred during such
Reference Period to the extent such Indebtedness is outstanding at the
Transaction Date, and (3) any Indebtedness to be Incurred on the Transaction
Date, in each case as if such Indebtedness had been Incurred on the first day of
such Reference Period and after giving pro forma effect to the application of
the proceeds thereof as if such application had occurred on such first day, (B)
Consolidated Interest Expense attributable to interest on any Indebtedness
(whether existing or being Incurred) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the
Transaction Date (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months) had been the applicable rate for the entire period, (C) there
shall be excluded from Consolidated Fixed Charges any Consolidated Fixed Charges
related to any amount of Indebtedness, Disqualified Stock, or obligations under
leases that were outstanding during such Reference Period or thereafter but that
are not outstanding or are to be repaid on the Transaction Date, except for
Consolidated Interest Expense accrued (as adjusted pursuant to clause (B) above)
during such Reference Period under a revolving credit or similar arrangement to
the extent of the commitment thereunder (or under any successor revolving credit
or similar arrangement) in effect on the Transaction Date, (D) pro forma effect
shall be given to asset sales and asset acquisitions (including giving pro forma
effect to the application of proceeds of any asset sales) that occur during such
Reference Period or thereafter and on or prior to the Transaction Date as if
they had occurred and such proceeds had been applied on the first day of such
Reference Period, (E) with respect to any such Reference Period commencing prior
to the Issue Date, the issuance of the Notes shall be deemed to have taken place
on the first day of such Reference Period, and (F) pro forma effect shall be
given to asset sales and asset acquisitions (including giving pro forma effect
to the application of proceeds of any asset sale) that have been made by any
Person that has become a Subsidiary of the Company or has been merged with or
into the Company or any Subsidiary of the Company during such Reference Period
or subsequent to such period and prior to the Transaction Date and that would
have
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constituted Asset Sales or Asset Acquisitions had such transactions occurred
when such person was a Subsidiary of the Company as if such asset dispositions
or asset acquisitions were Asset Sales or Asset Acquisitions that occurred on
the first day of such Reference Period; provided that to the extent that clause
(D) or (F) of this sentence requires that pro forma effect be given to an asset
acquisition or asset disposition, such pro forma calculation shall be based upon
the four full fiscal quarters immediately preceding the Transaction Date of the
person, or division or line of business of the person, or property, that is
acquired or disposed of, for which financial information is available.
"Consolidated Fixed Charges" is defined to mean, for any
period, the sum (without duplication) of (i) Consolidated Interest Expense for
such period, (ii) all but the principal component of rentals in respect of
Capitalized Lease Obligations paid, accrued, or scheduled to be paid or to be
accrued by the Company and its Subsidiaries during such period, and (iii) cash
dividends declared or paid in respect of any Preferred Stock of the Company and
its Subsidiaries during such period (other than dividends paid or payable to the
Company or a Wholly-Owned Subsidiary of the Company), in each case as determined
on a consolidated basis in accordance with GAAP consistently applied. For
purposes of this definition, the amount of any cash dividends declared or paid
will be deemed to be equal to the amount of such dividends multiplied by a
fraction, the numerator of which is one and the denominator of which is one
minus the maximum statutory combined Federal, state, local and foreign income
tax rate then applicable to the Company and its Subsidiaries (expressed as a
decimal between one and zero) on a consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period, the interest expense of the Company and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP consistently
applied, including, without limitation, (a) amortization of debt discount, (b)
the net payments, if any, under interest rate contracts (including amortization
of discounts), (c) the interest portion of any deferred payment obligation and
(d) accrued interest.
"Consolidated Net Income" means, with respect to any period,
the net income (or loss) of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied,
adjusted, to the extent included in calculating such net income (or loss), by
excluding, without duplication, (i) all extraordinary gains and losses (net of
fees and expenses relating to the transaction giving rise thereto), (ii) the
portion of net income (or loss) of the Company and its Subsidiaries allocable to
interests in unconsolidated Persons, except to the extent of the amount of
dividends or distributions actually paid to the Company or its Subsidiaries by
such other Person during such period, (iii) net income (or loss) of any Person
combined with the Company or any of its Subsidiaries on a "pooling of interests"
basis attributable to any period prior to the date of combination, (iv) net gain
but not losses in respect of Asset Sales, or (v) the net income of any
Subsidiary of the Company to the extent
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that the declaration of dividends or similar distributions by that Subsidiary of
that income to the Company is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders.
"Consolidated Net Worth" means, with respect to any Person on
any date, the equity of the common and preferred stockholders of such Person and
its Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP consistently applied.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 11.02 or such other address as the Trustee may give
notice to the Company.
"Credit Facility" means the Credit Agreement, dated as of
March 15, 1996, as amended, among the Company, as borrower, and the lenders
named therein and Internationale Nederlanden (U.S.) Capital Corporation and
Cerberus Partners, L.P., as Agents, as the same may be amended, modified,
renewed, refunded, replaced or refinanced from time to time, including (i) any
related notes, letters of credit, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time, and (ii)
any notes, guarantees, collateral documents, instruments and agreements executed
in connection with any such amendment, modification, renewal, refunding,
replacement or refinancing.
"Custodian" means any custodian, receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"Depositary" means, with respect to Notes issued in the form
of one or more Global Notes, DTC or another Person designated as Depositary by
the Company, which Person must be a clearing agency registered under Section 17A
of the Exchange Act.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund
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obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part on or prior to the stated maturity of the Notes.
"Dollars" and "$" mean lawful money of the United States of
America.
"DTC" means The Depository Trust Company.
"Equity Offering" means (i) an underwritten public offering of
Capital Stock (other than Disqualified Stock) of the Company subsequent to the
Issue Date (excluding Capital Stock which may be issued upon exercise of any
over-allotment option exercisable after the Issue Date and granted in connection
with the Concurrent Offering), pursuant to an effective registration statement
filed under the Securities Act, or (ii) any private placement of Capital Stock
(other than Disqualified Stock) of the Company subsequent to the Issue Date, in
either case the net proceeds of which to the Company (after deducting any
underwriting discounts and commissions) exceed $25 million.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such asset) which
could be negotiated in an arm's length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction; provided that, except with respect of
any Asset Sale which involves an asset or assets the value of which could
reasonably be expected to exceed $250,000, the Fair Market Value of any such
asset or assets shall be determined by the Board of Directors of the Company,
acting in good faith, and shall be evidenced by resolutions of the Board of
Directors of the Company delivered to the Trustee; and provided, further, that
the Fair Market Value of a location agreement shall be the present value of the
revenue to be received by the Company under such agreement until the expiration
of the term of such agreement, without giving effect to any rights to renew or
extend such agreement, based on the actual amount of revenue, net of related
costs associated with the telephone or telephones covered by such agreement,
received by the Company under such agreement for the most recent fiscal quarter.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note" means a Note evidencing all or part of the Notes
issued to the Depositary in accordance with Section 2.15 and bearing the legend
described in Exhibit B.
▇▇
-▇-
"▇▇▇▇▇▇▇▇▇" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and
"guaranteed," "guaranteeing" and "guarantor" shall have meanings correlative to
the foregoing); provided, however, that the guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means any person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such Person
for borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture or similar instrument, (ii) all
Capital Lease Obligations of such Person, (iii) all obligations of such Person
in respect of letters of credit or bankers' acceptances issued or created for
the account of such Person, (iv) all Interest Rate Agreement Obligations of such
Person, (v) all liabilities secured by any Lien on any property owned by such
Person even if such Person has not assumed or otherwise become liable for the
payment thereof to the extent of the lesser of (x) the amount of the Obligation
so secured and (y) the Fair Market Value of the property subject to such Lien,
(vi) all obligations to purchase, redeem, retire, or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (vii) to the extent not
included in (vi), all Disqualified Stock issued by such Person, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends thereon, and (viii) to the extent not otherwise
included, any guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (i) through (vii) above. "Indebtedness"
of the Company and its Subsidiaries shall not include current trade payables
incurred in the ordinary course of business and payable in accordance with
customary practices, and non-interest bearing installment obligations and
accrued liabilities incurred in the ordinary course of business which are not
more than 90 days past due. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by the fair market value of, such Disqualified Stock,
such fair market value is to be determined in good faith by the board of
directors of the issuer of such Disqualified Stock.
17
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"Indenture" means this Indenture as amended or supplemented
from time to time.
"Independent Director" means a director of the Company other
than a director (i) who (apart from being a director of the Company or any
Subsidiary) is an employee or Affiliate of the Company or a Subsidiary of the
Company or has held any such position during the previous five years, (ii) who
is a director, employee or Affiliate of another party to the transaction in
question, or (iii) who has, or who has been appointed to the Board of Directors
by a shareholder who has, a direct or indirect financial interest in the
transaction in question.
"Insolvency or Liquidation Proceeding" means, with respect to
any Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Interest Rate Agreement Obligations" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates of such
Person) in the form of loans, guarantees, advances or capital contributions
(excluding commission, travel, relocation expenses and similar loans and
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Capital Stock
or other securities and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. "Investments"
shall exclude extensions of trade credit (including extensions of credit in
respect of equipment leases) by the Company and its Subsidiaries in the ordinary
course of business in accordance with normal trade practices of the Company or
such Subsidiary, as the case may be.
"Issue" means create, issue, assume, guarantee, incur or
otherwise become, directly or indirectly, liable for any Indebtedness or Capital
Stock, as applicable; provided, however, that any Indebtedness or Capital Stock
of a Person existing at the time such Person becomes a Subsidiary (whether by
designation, merger, consolidation, acquisition or otherwise) shall be deemed to
be issued by such Subsidiary at the time it becomes a Subsidiary. For this
definition, the terms "issuing," "issuer," "issuance" and "issued" have meanings
correlative to the foregoing.
"Issue Date" means the date of original issuance of the Notes.
18
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"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, or in the city in which the
principal office of the Trustee is located, are not required to be open.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of, or agreement to give, any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).
"Net Proceeds" means, with respect to any Asset Sale by any
Person, the aggregate cash proceeds received by such Person and/or its
Affiliates in respect of such Asset Sale, which amount is equal to the excess,
if any, of (i) the cash received by such Person and/or its Affiliates (including
any cash payments received by way of deferred payment pursuant to, or
monetization of, a note, an equity security or installment receivable or
otherwise, but only as and when received) in connection with such Asset Sale,
over (ii) the sum of (a) the amount of any Indebtedness that is secured by such
asset and which is required to be repaid by such Person in connection with such
Asset Sale, plus (b) all fees, commissions and other expenses incurred by such
Person in connection with such Asset Sale, plus (c) provision for taxes,
including income taxes, attributable to the Asset Sale or attributable to
required prepayments or repayments of Indebtedness with the proceeds of such
Asset Sale, plus (d) a reasonable reserve for the after-tax cost of any
indemnification payments (fixed or contingent) attributable to seller's
indemnities to purchaser in respect of such Asset Sale undertaken by the Company
or any of its Subsidiaries in connection with such Asset Sale plus (e) if such
Person is a Subsidiary of the Company, any dividends or distributions payable to
holders of minority interests in such Subsidiary from the proceeds of such Asset
Sale.
"Notes" means the % Senior Notes due 2006, including the
Subsidiary Guarantees, as amended or supplemented from time to time in
accordance with the terms hereof that are issued pursuant to this Indenture.
"Notes Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
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"Officer" means, with respect to any Person, the Chairman, the
President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed by two
Officers of the Company which shall include at least one of the Chairman, the
President or any Vice President and otherwise complying with the applicable
requirements of Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion in form and
substance satisfactory to, and from legal counsel acceptable to, the Trustee
(such counsel may be an employee of or counsel to the Company or the Trustee)
and complying with the applicable requirements of Sections 11.04 and 11.05.
"Other Senior Debt" means Indebtedness of the Company ranking
pari passu in right of payment with the Notes and Indebtedness of a Subsidiary
Guarantor ranking pari passu in right of payment with the Subsidiary Guarantees,
in each case, the terms of which require that Net Proceeds be used to
permanently reduce (and thereby also reduce commitments relating to) such
Indebtedness.
"Other Senior Debt Pro Rata Share" means a fraction, (i) the
numerator of which is the aggregate principal amount of Other Senior Debt
outstanding on the date Net Proceeds are received and (ii) the denominator of
which is the sum of (x) the aggregate principal amount of Notes outstanding on
such date and (y) the aggregate principal amount of any Other Senior Debt
outstanding on such date.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or a Subsidiary Guarantor which ranks pari passu in right of payment
with the Notes or the Subsidiary Guarantee of such Subsidiary Guarantor, as the
case may be (whether or not such Indebtedness is secured by any Lien).
"Permitted Holders" means (i) ▇▇▇▇▇ ▇. ▇▇▇▇; (ii) his spouse
and lineal descendants; (iii) in the event of the incompetence or death of any
of the Persons described in clauses (i) and (ii), such Person's estate,
executor, administrator, committee or other personal representative; (iv) any
trusts created for the benefit of the Persons described in clause (i) or (ii);
(v) each of Internationale Nederlanden (U.S.) Capital Corporation and Cerberus
Partners, L.P.; or (vi) any Person controlled by any of the Persons described in
clause (i), (ii), (iv) or (v). For purposes of this definition, "control," as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities or by
contract or otherwise.
20
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"Permitted Investments" means (i) any Investment in the
Company or any Subsidiary Guarantor; (ii) any Investments in Cash Equivalents;
(iii) any Investment in a Person (an "Acquired Person") if, as a result of such
Investment, (a) the Acquired Person becomes a Subsidiary Guarantor, or (b) the
Acquired Person either (1) is merged, consolidated or amalgamated with or into
the Company or a Subsidiary Guarantor and the Company or such Subsidiary
Guarantor is the Surviving Person, or (2) transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or a Subsidiary Guarantor;
(iv) Investments in accounts and notes receivable acquired in the ordinary
course of business; (v) Interest Rate Agreement Obligations permitted pursuant
to Section 4.07(b)(vi); (vi) loans to employees the proceeds of which are used
to pay taxes due in respect of stock grants to such employees in an amount not
to exceed in the aggregate $1 million in each of calendar year 1997 and 1998 and
$750,000 in calendar year 1999; and (vii) Investments, not to exceed $2.5
million at any time outstanding, in joint ventures in which Cherokee or any of
its Subsidiaries is a party as of the Issue Date and which relate solely to
certain public pay telephones located in Mexico that are to be acquired in
connection with the Cherokee Acquisition.
"Permitted Liens" means (i) (A) Liens on assets or property of
the Company that secure Indebtedness outstanding under the Credit Facility
pursuant to Section 4.07(b)(i); (B) Liens securing up to $25 million of
additional Indebtedness outstanding under the Credit Facility incurred pursuant
to the Consolidated Fixed Charge Coverage Ratio in Section 4.07(a); and (C)
Liens securing up to $25 million of additional Indebtedness, if the Consolidated
Fixed Charge Coverage Ratio at the time of such incurrence, after giving effect
to such Indebtedness, is 3.0 to 1.0; (ii) Liens securing Indebtedness of a
Person existing at the time that such Person is merged into or consolidated with
the Company or a Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of such Person; (iii) Liens on property
acquired by the Company or a Subsidiary; provided that such Liens were in
existence prior to the contemplation of such acquisition and do not extend to
any other property; (iv) Liens in favor of the Company or any Subsidiary of the
Company; (v) Liens incurred, or pledges and deposits in connection with,
workers' compensation, unemployment insurance and other social security
benefits, and leases, appeal bonds and other obligations of like nature incurred
by the Company or any Subsidiary of the Company in the ordinary course of
business; (vi) Liens imposed by law, including, without limitation, mechanics',
carriers', warehousemen's, materialmen's, suppliers' and vendors' Liens,
incurred by the Company or any Subsidiary of the Company in the ordinary course
of business; (vii) Liens for ad valorem, income or property taxes or assessments
and similar charges which either are not delinquent or are being contested in
good faith by appropriate proceedings for which the Company has set aside on its
books reserves to the extent required by GAAP; (viii) Liens created under this
Indenture; (ix) Liens securing Capital Lease Obligations on property subject to
the applicable lease; (x) Liens securing Interest Rate Agreement Obligations;
and (xi) purchase money Liens incurred in the ordinary course of
21
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business, provided that such Liens relate only to the property or assets
acquired and such Liens are created within 90 days of the acquisition of such
property or assets.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Notes" has the meaning set forth in Section 2.15.
"Preferred Stock" as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Capital Stock of any other class of such
Person.
"Prospectus" means the final prospectus relating to the public
offering of the Notes dated December , 1996.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Subsidiaries incurred in connection with the purchase of
property or assets for the business of the Company and its Subsidiaries.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" means (i) any dividend or other
distribution declared or paid on any Capital Stock of the Company or any of its
Subsidiaries (other than dividends or distributions payable solely in Capital
Stock (other than Disqualified Stock) of the Company or such Subsidiary or
dividends or distributions payable to the Company or any Subsidiary Guarantor);
(ii) any payment to purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any Subsidiary of the Company or other
Affiliate of the Company (other than any Capital Stock owned by the Company or
any Subsidiary Guarantor); (iii) any payment to purchase, redeem, defease or
otherwise acquire or retire for value any Subordinated Indebtedness prior to the
maturity thereof; or (iv) any Restricted Investment.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Offer Notice Date" means ___________________, 1997.
"Subordinated Indebtedness" means any Indebtedness of the
Company or a Subsidiary Guarantor if the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding expressly
provides that such Indebtedness is
22
-15-
subordinated in right of payment to the Notes or the Subsidiary Guarantee of
such Subsidiary Guarantor, as the case may be.
"Subsidiary" of any Person means (i) any corporation more than
50% of the outstanding Voting Stock of which is owned or controlled, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person,
or by such Person and one or more other Subsidiaries thereof, or (ii) any
limited partnership of which such Person or any Subsidiary of such Person is a
general partner, or (iii) any other Person (other than a corporation or limited
partnership) in which such Person, or one or more other Subsidiaries of such
Person, or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has more than 50% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof.
"Subsidiary Guarantees" means the guarantees of the Notes
issued by the Subsidiary Guarantors.
"Subsidiary Guarantor" means (i) each Subsidiary of the
Company existing on the Issue Date, (ii) each of the Company's Subsidiaries
which becomes a guarantor of the Notes in compliance with the provisions
pursuant to Section 4.17 and (iii) each of the Company's Subsidiaries executing
a supplemental indenture in which such Subsidiary agrees to be bound by the
terms of this Indenture.
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended by the Trust Indenture Reform Act of
1990, and as in effect on the Issue Date.
"Trustee" means Marine Midland Bank until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means such successor.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer the Indenture, or in the case of a successor trustee,
an officer assigned to the department, division or group performing the
corporation trust work of such successor and assigned to administer this
Indenture.
"U.S. Government Obligations" means direct obligations of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged, provided that no U.S. Government
Obligation shall be callable at the Issuer's option prior to the stated maturity
date of the Notes.
23
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"Voting Stock" means, with respect to any Person, Capital
Stock of such Person of the class or classes pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Weighted Average Life to Maturity" means, with respect to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (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
aggregate principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" means any Subsidiary of which 100%
of the outstanding Capital Stock is owned by the Company or another Wholly-Owned
Subsidiary. For purposes of this definition, any director's qualifying shares or
investments by foreign nationals mandated by applicable law shall be disregarded
in determining the ownership of a Subsidiary.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
"Asset Sale Offer"..........................................4.13
"Asset Sale Offer Purchase Date"............................4.13
"Asset Sale Offer Trigger Date".............................4.13
"Change of Control Offer"...................................4.11
"Change of Control Purchase Date"...........................4.11
"Collateral Account"........................................4.18
"Covenant Defeasance Option"................................8.01
"Event of Default"..........................................6.01
"Excess Proceeds"...........................................4.13
"Final Special Offer Purchase Date".........................4.12
"Incur".....................................................4.07
"Interested Person".........................................4.19
"Legal Defeasance Option"...................................8.01
"Notice of Default".........................................6.01
"Participants"..............................................2.15
"Paying Agent"..............................................2.03
24
-17-
"Payment Restriction".......................................4.09
"Permitted Indebtedness"....................................4.07
"Permitted Payments"........................................4.05
"Purchase Date".............................................3.08
"Refinancing Indebtedness"..................................4.07
"Registrar".................................................2.03
"Required Filing Dates".....................................4.02
"Special Offer".............................................4.12
"Special Offer Price".......................................4.12
"Special Offer Purchase Date"...............................4.12
"Trustee Expenses"..........................................6.08
"Trust Funds"...............................................4.18
SECTION 1.03. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the Trust
Indenture Act of 1939, as amended, the provision is incorporated by reference
in, and made a part of, this Indenture. Any terms incorporated by reference in
this Indenture that are defined by the TIA, defined by the TIA's reference to
another statute or defined by Commission rule under the TIA have the meanings so
assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires: (1) a term has the
meaning assigned to it in this Indenture; (2) an accounting term not otherwise
defined herein has the meaning assigned to it under GAAP; (3) "or" is not
exclusive; (4) words in the singular include the plural, and in the plural
include the singular; (5) provisions apply to successive events and
transactions; and (6) unless otherwise specified, any reference to a Section or
Article refers to such Section or Article of this Indenture.
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ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, and the notation thereon
relating to the Subsidiary Guarantees shall be substantially in the form of
Exhibit A-1. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes and the
Subsidiary Guarantees shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company, the Subsidiary
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers of the Company, one of whom must be the Secretary
or an assistant secretary, shall sign each Note for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid. Each Subsidiary Guarantor shall execute the Subsidiary Guarantee in
the manner set forth in Section 10.04.
A Note shall not be valid until authenticated by the manual
signature of the Trustee, and the Trustee's signature shall be conclusive
evidence that the Note has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or any of its Affiliates.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount of $110,000,000 upon receipt of (i) a written order
of the Company specifying the
26
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amount of Notes to be authenticated and the date on which the Notes are to be
authenticated and (ii) an Officers' Certificate and an Opinion of Counsel, each
complying with Section 314(c) of the TIA and Section 11.04 and 11.05. The
aggregate principal amount of Notes outstanding at any time may not exceed
$110,000,000, except as provided in Section 2.07. Upon receipt of a written
order of the Company, the Trustee shall authenticate Notes in substitution of
Notes originally issued to reflect any name change of the Company.
The Notes shall initially be issued in the form of one or more
permanent Global Notes, substantially in the form set forth in Exhibit A. Global
Notes shall be registered in the name of a nominee of the Depositary and
deposited with the Trustee, at its New York office, in its capacity as Notes
Custodian, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Each Global Note shall evidence such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
evidence the aggregate principal amount of outstanding Notes from time to time
endorsed thereon, and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
applicable, to reflect exchanges, redemptions, and other similar transactions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the amount of outstanding Notes represented thereby shall be made by
the Trustee or the Notes Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar; Paying Agent; Depositary.
The Company shall maintain an office or agency (the
"Registrar") where Notes may be presented for registration of transfer or for
exchange and an office or agency (the "Paying Agent") where Notes may be
presented for payment. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change the Paying Agent, Registrar or
co-registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this Indenture. The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture, and such
agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Notes. If the Company fails to
27
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appoint or maintain a Registrar and/or Paying Agent, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints DTC to act as Depositary with
respect to any Global Notes and initially appoints the Trustee to act as Notes
Custodian with respect to any Global Notes.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the Holders or the Trustee all money the Paying Agent holds for the
redemption or purchase of the Notes or for the payment of principal of, or
premium, if any, or interest on, the Notes, and will notify the Trustee of any
default by the Company in providing the Paying Agent with sufficient funds to
redeem or purchase Notes or make any payment on the Notes as and to the extent
required to be redeemed, purchased or paid under the terms of this Indenture.
While any such default continues, the Trustee may require the Paying Agent to
pay all money it holds to the Trustee. The Company at any time may require the
Paying Agent to pay all money it holds to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or any of its Affiliates)
shall have no further liability for the money it delivered to the Trustee. If
the Company or any of its Subsidiaries acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the Holders' benefit all money it holds as
Paying Agent.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with Section 312(a) of the TIA.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee,
semiannually at least fifteen Business Days before each interest payment date
and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list in such form and as of
such date as the Trustee may reasonably require that sets forth the names and
addresses of, and the aggregate principal amount of Notes held by, each Holder,
and the Company shall otherwise comply with Section 312(a) of the TIA.
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SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Section 2.15, when Notes are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met; provided, however, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder of
such Note or by its attorney duly authorized in writing. To permit registrations
of transfers and exchanges, the Company shall Issue (and the Subsidiary
Guarantors shall execute the Subsidiary Guarantee endorsed thereon), and the
Trustee shall authenticate, Notes at the Registrar's request. The Trustee shall
notify the Company of all such registered transfers and exchanges within five
Business Days of the occurrence of such transfer or exchange.
Neither the Company nor the Registrar shall be required to
issue, register the transfer of or exchange any Note (i) during a period
beginning at the opening of business 15 days before the day of the mailing of
notice of any redemption from the Company and ending at the close of business on
the day the notice of redemption is sent to Holders, (ii) selected for
redemption, in whole or in part, except the unredeemed portion of any Note being
redeemed in part may be transferred or exchanged, and (iii) during any Change of
Control Offer or Special Offer or Asset Sale Offer if such Note is tendered
pursuant to such Change of Control Offer or Special Offer or Asset Sale Offer
and not withdrawn.
No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein), 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 tax or similar governmental charge payable upon exchange pursuant to
Section 2.10, 3.07 or 9.05, which the Company shall pay).
Prior to due presentment for registration of transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of ownership or
other writing on such Note made by anyone other than the Company, the Registrar
or any co-registrar) for the purpose of receiving payment of principal of, and
premium, if any, and interest on, such Note and for all other purposes, and
notice to the contrary shall not affect the Trustee, any Agent or the Company.
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Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system (as described in Section 2.15)
maintained by the Depositary (or its agent), and that ownership of a beneficial
interest in the Global Note shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall, upon receipt of a written order in the form of an Officers' Certificate,
authenticate a replacement Note if the Trustee's requirements are met, and each
such replacement Note shall be an additional Obligation of the Company. If the
Trustee or the Company requires, the Holder must supply an indemnity bond that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their reasonable expenses in replacing a Note.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes the
Trustee has authenticated except those it has cancelled, those delivered to it
for cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that a bona fide purchaser
holds the replaced Note. If the entire principal of, and premium, if any, and
accrued interest on, any Note is considered paid under Section 4.01, it ceases
to be outstanding and interest on it ceases to accrue. Subject to Section 2.09,
a Note does not cease to be outstanding because the Company or any Affiliate of
the Company holds such Note.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Affiliate of the Company shall be considered as though
they are not outstanding; provided, however, that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes that the Trustee knows are so owned shall be so
disregarded. Notwithstanding the foregoing, Notes that the Company or any
Affiliate of the Company offers to purchase or acquires pursuant to an exchange
offer, tender offer or
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otherwise shall not be deemed to be owned by the Company or any Affiliate of the
Company until legal title to such Notes passes to the Company or such Affiliate,
as the case may be.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee, upon receipt of a written
order in the form of an Officers' Certificate, shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, any co-registrar, the Paying Agent, the Company and
its Subsidiaries shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange, replacement, payment (including all Notes
called for redemption and all Notes accepted for payment pursuant to an Offer)
or cancellation, and the Trustee shall cancel all such Notes and shall destroy
all cancelled Notes (subject to the record retention requirements of the
Exchange Act) and deliver a certificate of their destruction to the Company
unless, by written order signed by two Officers of the Company, the Company
shall direct that cancelled Notes be returned to it. The Company may not issue
new Notes to replace any Notes that have been cancelled by the Trustee or that
have been delivered to the Trustee for cancellation. If the Company or any
Affiliate of the Company acquires any Notes (other than by redemption pursuant
to Section 3.01 or an Offer pursuant to Section 4.11, 4.12 or 4.13), such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until such Notes are delivered
to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Notes and Section
4.01. The Company shall, with the Trustee's consent, fix or cause to be fixed
each such special record date and payment date. At least 15 days before the
special record date, the Company (or, at the request of the Company, the Trustee
in the name
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of, and at the expense of, the Company) shall mail a notice that states the
special record date, the related payment date and the amount of interest to be
paid.
SECTION 2.13. Record Date
The record date for purposes of determining the identity of
holders of Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in Section 316(c) of the TIA.
SECTION 2.14. CUSIP Number.
A "CUSIP" number will be printed on the Notes, and the Trustee
shall use the CUSIP number in notices of redemption, purchase or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will promptly
notify the Trustee of any change in the CUSIP number.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the
name of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set forth
in Exhibit B.
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Participants, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for certificated notes ("Physical Notes") in accordance with the
rules and procedures of the Depositary. In addition, Physical
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Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in Global Notes if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for any Global Note and
a successor depositary is not appointed by the Company within 30 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depositary to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred or exchanged,
and the Company shall execute (and the Subsidiary Guarantors shall execute the
Subsidiary Guarantee endorsed thereon), and the Trustee, pursuant to
instructions set forth in an Officers' Certificate from the Company, shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer or exchange of Global
Notes as an entirety to beneficial owners pursuant to paragraph (b), the Global
Notes shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute (and the Subsidiary Guarantors shall execute the
Subsidiary Guarantee endorsed thereon), and the Trustee, pursuant to
instructions set forth in an Officers' Certificate from the Company, shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Physical Notes of authorized denominations.
(e) Upon consummation of any redemption pursuant to Section
3.01 or any Offer pursuant to Sections 4.11, 4.12 or 4.13, the Registrar shall
reflect on its book and records the date and a decrease in the principal amount
of the Global Note in an amount equal to the aggregate principal amount being
redeemed or purchased by the Company. The Global Note shall be deemed to be
surrendered to the Trustee by the Notes Custodian and the Company shall execute
(and the Subsidiary Guarantors shall execute the Subsidiary Guarantee endorsed
thereon), and the Trustee, pursuant to instructions set forth in an Officers'
Certificate from the Company, shall authenticate and deliver to the Notes
Custodian, a new Global Note reflecting such reduction in principal amount
outstanding.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any person, including Participants and persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Notes.
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ARTICLE III
REDEMPTION
SECTION 3.01. Redemption Provisions.
The Notes are not redeemable at the Company's option prior to
, 2001. On and after such date, the Notes will be subject to redemption at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of the principal amount of the Notes) set forth below, plus
accrued and unpaid interest to the date fixed for redemption, if redeemed during
the twelve-month period beginning on [ ] of the years indicated below.
Year Percentage
---- ----------
2001........................................ %
2002........................................ %
2003........................................ %
2004 and thereafter......................... 100%
Notwithstanding the foregoing, at any time prior to , 1999,
the Company, at its option, may redeem from time to time up to [ ]% of the
aggregate principal amount of the Notes originally issued with the net cash
proceeds of one or more Equity Offerings, other than the Concurrent Offering at
a redemption price equal to [ ]% of the principal amount thereof, together with
accrued and unpaid interest to the date fixed for redemption; provided, however,
that at least $75 million in aggregate principal amount of the Notes remains
outstanding immediately after any such redemption.
SECTION 3.02. Notice to Trustee.
If the Company elects to redeem Notes pursuant to Section
3.01, it shall furnish to the Trustee, at least 30 but not more than 60 days
before notice of any redemption is to be mailed to Holders, an Officers'
Certificate stating that the Company is redeeming Notes pursuant to Section
3.01, the date notice of redemption is to be mailed to Holders, the redemption
date, the aggregate principal amount of Notes to be redeemed, the redemption
price for such Notes, the amount of accrued and unpaid interest on such Notes as
of the redemption date and, if applicable, the manner in which Notes are to be
selected for redemption, in accordance with Section 3.03, if less than all
outstanding Notes are to be redeemed. If the Trustee is not the Registrar, the
Company shall, concurrently with delivery of its notice to the
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Trustee of a redemption, cause the Registrar to deliver to the Trustee a
certificate (upon which the Trustee may rely) setting forth the name of, and the
aggregate principal amount of Notes held by each Holder.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption.
SECTION 3.03. Selection of Notes to Be Redeemed.
If less than all outstanding Notes are to be redeemed by the
Company, the Trustee, on behalf of the Company, shall select the outstanding
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 such an exchange the Trustee, on behalf of the Company,
shall select the outstanding Notes to be redeemed on a pro rata basis, by lot or
by any other method that the Trustee deems fair and appropriate; provided, that
a redemption pursuant to the provisions relating to Equity Offerings will be on
a pro rata basis. Notes redeemed in part shall only be redeemed in integral
multiples of $1,000. If the Company elects to mail notice of a redemption to
Holders, the Trustee shall at least five days prior to the date notice of
redemption is to be mailed, (i) select, on behalf of the Company, the Notes to
be redeemed from Notes outstanding not previously called for redemption, and
(ii) notify the Company of the names of each Holder of Notes selected for
redemption, the principal amount of Notes held by each such Holder and the
principal amount of such Holder's Notes that are to be redeemed. The Trustee
shall select for redemption Notes or portions of Notes in principal amounts of
$1,000 or integral multiples of $1,000. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption. The Trustee shall notify
the Company promptly of the Notes or portions of Notes to be called for
redemption. The Company shall notify the Trustee of its acceptance for payment
of the Notes selected for redemption.
SECTION 3.04. Notice of Redemption.
(a) At least 30 days but not more than 60 days before any
redemption date, the Company shall mail by first class mail a notice of
redemption to each Holder of Notes that are to be redeemed. With respect to any
redemption of Notes, the notice shall identify the Notes or portions thereof, if
applicable, to be redeemed and shall state: (1) the redemption date; (2) the
redemption price for the Notes and the amount of unpaid and accrued interest on
such Notes as of the date of redemption; (3) the paragraph of the Notes pursuant
to which the Notes called for redemption are being redeemed; (4) if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date, upon
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surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued; (5) the name and address of the Paying Agent;
(6) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price for, and any accrued and unpaid interest on, such
Notes; (7) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date; and (8) that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice and printed on the Notes.
(b) At the Company's request, the Trustee shall (at the
Company's expense) give the notice of any redemption to Holders; provided,
however, that the Company shall deliver to the Trustee, at least 45 days prior
to the date of any optional redemption and at least 10 days prior to the date
that notice of such redemption is to be mailed to Holders, an Officers'
Certificate that (i) requests the Trustee to give notice of the redemption to
Holders, (ii) sets forth the information to be provided to Holders in the notice
of redemption, as set forth in the preceding paragraph, and (iii) sets forth the
aggregate principal amount of Notes to be redeemed and the amount of accrued and
unpaid interest thereon as of the redemption date. If the Trustee is not a
Registrar, the Company shall, concurrently with any such request, cause the
Registrar to deliver to the Trustee a certificate (upon which the Trustee may
rely) setting forth the name of, the address of, and the aggregate principal
amount of Notes held by, each Holder.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption become due and payable on the redemption date at the price set forth
in the Note.
SECTION 3.06. Deposit of Redemption Price.
(a) On or prior to any redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of, and accrued interest on, all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall return to the Company, no later than
five days after any redemption date, any money (including accrued interest) that
exceeds the amount necessary to pay the redemption price of, and accrued
interest on, all Notes redeemed.
(b) If the Company complies with Section 3.06(a), interest on
the Notes to be redeemed will cease to accrue on such Notes on the applicable
redemption date, whether or not such Notes are presented for payment. If a Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business of such
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record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, to the extent lawful, the Company shall pay interest on
the overdue principal, premium, if any, and interest from the redemption date
until such principal, premium and interest are paid, at a rate equal to 2% per
annum in excess of the then applicable interest rate on the Notes compounded
semi-annually as provided in the Notes and Section 4.01.
SECTION 3.07. Notes Redeemed in Part.
Subject to Section 2.15, upon surrender of a Note that is
redeemed in part, the Company shall issue and the Trustee shall authenticate for
the Holder at the Company's expense a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company shall pay the principal of, and premium, if any,
and interest on, the Notes on the dates and in the manner provided in the Notes
and in this Indenture. Holders must surrender their Notes to the Paying Agent to
collect principal payments. Principal, premium, or interest shall be considered
paid on the date due if, by 11 a.m. Eastern Standard Time on such date, the
Company has deposited with the Paying Agent money in immediately available funds
designated for and sufficient to pay such principal, premium or interest. The
Paying Agent shall return to the Company, no later than five days following the
date of payment, any money (including accrued interest) that exceeds the amount
then due and payable on the Notes.
The Company shall pay interest on overdue principal, premium
and interest (without regard to any applicable grace period) at a rate equal to
2% per annum in excess of the then applicable interest rate on the Notes,
compounded semiannually.
Payments of the principal of, premium (if any) and interest on
any Global Notes will be made to the Depositary or its nominee, as the case may
be, as the registered owner thereof. None of the Company, the Trustee nor any
Paying Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in any Global Notes or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
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SECTION 4.02. Provision of Financial Statements.
Whether or not the Company is then subject to Section 13(a) or
15(d) of the Exchange Act, the Company will file with the Commission, so long as
any Notes are outstanding, the annual reports, quarterly reports and other
periodic reports which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) if the Company were so
subject, and such documents shall be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject. The
Company will also, in any event, (i) within 15 days of each Required Filing
Date, (a) transmit by mail to all holders of Notes, as their names and addresses
appear in the Note register, without cost to such holders and (b) file with the
Trustee copies of the annual reports, quarterly reports and other periodic
reports which the Company would have been required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act if the Company were
subject to such Sections and (ii) if filing such documents by the Company with
the Commission is prohibited under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective Holder at the Company's cost. In
addition, the Company will file with the Commission and with the Trustee, in
accordance with rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to compliance with
the conditions and covenants provided for herein as may be required by such
rules and regulations.
SECTION 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 135 days
after the end of each fiscal year of the Company, an Officers' Certificate,
which shall be executed, on behalf of the Company by two Officers, at least one
of which shall be the principal executive officer, principal financial officer
or principal accounting officer of the Company, stating that (i) a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made to determine whether the Company has kept, observed, performed and
fulfilled all of its obligations under this Indenture and the Notes, (ii) such
review was supervised by the Officers of the Company signing such certificate,
and (iii) that to the best knowledge of each Officer signing such certificate,
(a) the Company has kept, observed, performed and fulfilled each and every
condition and covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default occurred, describing all such
Defaults or Events of Default of which each such Officer may have knowledge and
what action the Company has taken or proposes to take with respect thereto), and
(b) no event has occurred and remains in existence by reason of which payments
on account of the principal of, or premium, if any, or interest on,
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the Notes are prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto. The Officers' Certificate shall also notify the Trustee should the
Company elect to change the manner in which it fixes its fiscal year end. For
purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided hereunder.
So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.02 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation reasonably satisfactory to the Trustee) that
in making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provision of Section 4.01, 4.05, 4.07, 4.08,
4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 or 4.18 or Article V or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
The Company will, so long as any of the Notes are outstanding,
deliver to the Trustee, promptly after any Officer of the Company becomes aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
The Company shall deliver to the Trustee such other
information or documents reasonably requested by the Trustee in connection with
the compliance by the Trustee or the Company with the TIA.
SECTION 4.04. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that might affect the
covenants or the performance of its obligations under this Indenture and the
Notes; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power
granted to the Trustee pursuant to this Indenture, but will suffer and permit
the execution of every such power as though no such law has been enacted.
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SECTION 4.05. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless at
the time of and immediately after giving effect to the proposed Restricted
Payment (with the value of any such Restricted Payment, if other than cash, to
be determined by the Board of Directors in good faith and which determination
shall be conclusive and evidenced by a board resolution), (i) no Default or
Event of Default (and no event that, after notice or lapse of time, or both,
would become an "event of default" under the terms of any Indebtedness of the
Company or its Subsidiaries) shall have occurred and be continuing or would
occur as a consequence thereof, (ii) the Company could incur at least $1.00 of
additional Indebtedness pursuant to the provisions of Section 4.07(a) and (iii)
the aggregate amount of all Restricted Payments made after the Issue Date shall
not exceed the sum of (a) 50% of cumulative Consolidated Net Income of the
Company (or, in the case such cumulative Consolidated Net Income shall be
negative, less 100% of such deficit) since the end of the fiscal quarter in
which the Issue Date occurs through the last day of the most recent fiscal
quarter, plus (b) the aggregate amount of all net cash proceeds received after
the Issue Date by the Company (but excluding the net cash proceeds received by
the Company from the Concurrent Offering) from the issuance and sale (other than
to a Subsidiary of the Company) of Capital Stock of the Company (other than
Disqualified Stock) and the principal amount of Indebtedness of the Company or
any Subsidiary Guarantor that had been converted into or exchanged for Capital
Stock of the Company and, in either case, to the extent that such proceeds are
not used to redeem, repurchase, retire or otherwise acquire Capital Stock or any
Indebtedness of the Company or any of its Subsidiaries pursuant to clause (ii)
of Section 4.05(b), plus (c) in the case of the disposition or repayment of any
Investment for cash, which Investment constituted a Restricted Payment made
after the Issue Date, an amount equal to the lesser of the return of capital
with respect to such Investment and the cost of such Investment, in either case,
reduced (but not below zero) by the excess, if any, of the cost of the
disposition of such Investment over the gain, if any, realized by the Company or
such Subsidiary in respect of such disposition.
(b) The provisions of Section 4.05(a) will not prohibit, so
long as there is no Default or Event of Default continuing, the following
actions (collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such declaration date such payment
would have been permitted under this Indenture, and such payment shall
be deemed to have been paid on such date of declaration for purposes of
clause (iii) of Section 4.05(a);
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(ii) the redemption, repurchase, retirement, defeasance or
other acquisition of any Capital Stock or any Indebtedness of the
Company in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Company) of Capital
Stock of the Company (other than any Disqualified Stock);
(iii) the repurchase, redemption or other repayment of any
Subordinated Debt of the Company or a Subsidiary Guarantor in exchange
for, by conversion into or solely out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary of the
Company) of Subordinated Debt of the Company or such Subsidiary
Guarantor with a Weighted Average Life to Maturity equal to or greater
than the then remaining Weighted Average Life to Maturity of the
Subordinated Debt repurchased, redeemed or repaid;
(iv) the redemption, repurchase, retirement, defeasance or
other acquisition of Capital Stock of the Company or any options or
stock appreciation rights related to Capital Stock of the Company held
by officers or employees (or their estates or beneficiaries of estates)
upon death, disability, retirement or termination of employment;
provided that the amount of Permitted Payments made under this clause
(iv) shall not exceed $1 million per annum;
(v) any redemption of the Company's 14% Cumulative
Redeemable Convertible Preferred Stock (i) having an aggregate stated
value of $5.5 million out of the proceeds of the issuance of the Notes
or the Concurrent Offering or (ii) at its stated maturity out of the
proceeds of a concurrent issuance of Capital Stock (other than
Disqualified Stock); and
(vi) Restricted Investments received as consideration in
connection with an Asset Sale made in compliance with the Indenture.
(c) In computing the amount of Restricted Payments for
purposes of Section 4.05(a)(iii), Restricted Payments made under Sections
4.05(b)(iv) and 4.05(b)(vi) shall be included and Restricted Payments made under
Sections 4.05(b)(i), 4.05(b)(ii), 4.05(b)(iii) and Section 4.05(b)(v) shall be
excluded.
SECTION 4.06. Corporate Existence.
The Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each of its
Subsidiaries and the rights (charter and statutory), licenses and franchises of
the Company and each of its Subsidiaries; provided, however, that the Company
shall not be
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required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders.
SECTION 4.07. Limitation on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any of its
Subsidiaries to, issue, create, incur, assume or directly or indirectly
guarantee or in any other manner become directly or indirectly liable for
("Incur") any Indebtedness (including Acquired Debt), except for Permitted
Indebtedness, unless at the time of and immediately after giving pro forma
effect to such incurrence, the Consolidated Fixed Charge Coverage Ratio of the
Company and its Subsidiaries would be greater than (x) 1.5 to 1.0 if the
Indebtedness is incurred prior to , 1997, (y) 2.25 to 1.0 if the
Indebtedness is Incurred prior to , 1998 or (z) 2.5 to 1.0 if the
Indebtedness is incurred on or after , 1998.
(b) Section 4.07(a) will not apply to the Incurrence of any of
the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company Incurred under the Credit
Facility in an aggregate principal amount at any time outstanding not
to exceed the sum of (1) 80% of the net amount of accounts receivable
(as determined under GAAP) of the Company and the Subsidiaries plus (2)
an amount equal to $1,300 multiplied by the number of Eligible Pay
Telephones (as defined in the Credit Facility as in effect on the Issue
Date), in each case as determined in good faith by the Company at the
time of each incurrence of Indebtedness under the Credit Facility;
provided that in no event shall the aggregate principal amount of
Indebtedness outstanding at any one time under the Credit Facility
permitted pursuant to this clause (i) exceed $25 million less the
aggregate amount of any other principal payments thereunder
constituting permanent reductions of such Indebtedness pursuant to and
in accordance with the covenant described under Section 4.13; and
provided, further, that in no event shall the aggregate principal
amount of Indebtedness outstanding at any one time under the Credit
Facility pursuant to this Section 4.07(b)(i) which was Incurred for
working capital purposes exceed $15 million;
(ii) Indebtedness of the Company under the Notes and the
Indenture and of any Subsidiary Guarantor represented by a Subsidiary
Guarantee and other Indebtedness of the Company and the Subsidiary
Guarantors outstanding on the Issue Date;
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(iii) Indebtedness owed by any Subsidiary of the Company to
the Company or to a Subsidiary Guarantor, or owed by the Company to any
Subsidiary Guarantor; provided that any such Indebtedness shall be held
by a Person which is either the Company or a Subsidiary Guarantor and
provided, further, that (A) any such Indebtedness of a Subsidiary of
the Company shall not be subordinated to any other Indebtedness of such
Subsidiary and (B) any such Indebtedness owed to a Subsidiary Guarantor
shall be unsecured and shall be subordinated to the payment when due of
the Notes and, provided, further, that an incurrence of additional
Indebtedness which is not permitted under this clause (iii) shall be
deemed to have occurred upon either (a) the transfer or other
disposition of any such Indebtedness to a Person other than the Company
or a Subsidiary of the Company or (b) the sale, lease, transfer or
other disposition of shares of Capital Stock (including by
consolidation or merger) of any such Subsidiary of the Company to a
Person other than the Company or a Subsidiary Guarantor such that such
Subsidiary ceases to be a Subsidiary Guarantor;
(iv) Indebtedness of the Company or any Subsidiary Guarantor
consisting of guarantees of any Indebtedness of the Company or any
Subsidiary Guarantor which Indebtedness has been Incurred in accordance
with the provisions of the Indenture;
(v) Indebtedness arising with respect to Interest Rate
Agreement Obligations Incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that
is permitted by the terms of the Indenture to be outstanding; provided,
however, that the notional principal amount of such Interest Rate
Agreement Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Rate Agreement Obligation relates;
and
(vi) Indebtedness of the Company or a Subsidiary of the
Company incurred in connection with or given in exchange for the
renewal, extension, substitution, refunding, defeasance, refinancing or
replacement of any Indebtedness permitted to be incurred or outstanding
under the Consolidated Fixed Charge Coverage Ratio of the first
paragraph of this covenant or pursuant to clause (ii) above
("Refinancing Indebtedness"); provided that (a) the principal amount of
such Refinancing Indebtedness shall not exceed the principal amount of
the Indebtedness so renewed, extended, substituted, refunded, defeased,
refinanced or replaced (plus the premiums or other payments paid in
connection therewith (which shall not exceed the stated amount of any
premium or other payments required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being renewed,
extended, substituted, refunded, defeased, refinanced or replaced) and
the expenses incurred in connection therewith); (b) the Refinancing
Indebtedness shall have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness
being renewed, extended, substituted, refunded, defeased, refinanced or
replaced; and (c) such Refinancing
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Indebtedness shall not rank senior to, and shall be at least as
subordinated, in right of payment to the Notes or the Subsidiary
Guarantees, as the case may be, as the Indebtedness being renewed,
extended, substituted, refunded, defeased, refinanced or replaced.
SECTION 4.08. Taxes.
The Company shall, and shall cause each of its Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies the
failure of which to pay could reasonably be expected to result in a material
adverse effect on the condition (financial or otherwise), business or results of
operations of the Company and its Subsidiaries taken as a whole, except for
those taxes contested in good faith by appropriate proceedings.
SECTION 4.09. Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to (i) pay dividends or make any other distributions
to the Company or any other Subsidiary of the Company on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits, or pay any Indebtedness owed to the Company or any other Subsidiary of
the Company, (ii) make loans or advances to the Company or any other Subsidiary
of the Company, or (iii) transfer any of its properties or assets to the Company
or any other Subsidiary of the Company (collectively, "Payment Restrictions"),
except for such encumbrances or restrictions existing under or by reason of (a)
the Credit Facility as in effect on the Issue Date and any amendments,
restatements, renewals, replacements or refinancings thereof; provided that such
amendments, restatements, renewals, replacements or refinancings are no more
restrictive in the aggregate with respect to such dividend and other payment
restrictions than those contained in the Credit Facility immediately prior to
any such amendment, restatement, renewal, replacement or refinancing, (b)
applicable law, (c) any instrument governing Indebtedness or Capital Stock of an
Acquired Person acquired by the Company or any of its Subsidiaries as in effect
at the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with such acquisition); provided that such restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Acquired Person, (d) customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (e) Purchase Money Indebtedness for property acquired in the ordinary
course of business that only impose restrictions on the property so acquired,
(f) an agreement for the sale or disposition of the Capital Stock or assets of
such Subsidiary; provided that such restriction is only
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applicable to such Subsidiary or assets, as applicable, and such sale or
disposition otherwise is permitted under the covenant described under Section
4.13; and provided, further, that such restriction or encumbrance shall be
effective only for a period from the execution and delivery of such agreement
through a termination date not later than 270 days after such execution and
delivery, (g) Refinancing Indebtedness permitted under this Indenture; provided
that the restrictions contained in the agreements governing such Refinancing
Indebtedness are no more restrictive in the aggregate than those contained in
the agreements governing the Indebtedness being refinanced immediately prior to
such refinancing, (h) any agreement in effect on the Issue Date and (i)
provisions in security agreements relating to secured Indebtedness of a
Subsidiary to the extent such provisions restrict the transfer of the property
that is the subject of such security agreements.
SECTION 4.10. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the
City of New York, an office or an agency (which may be an office of any Agent)
where Notes may be surrendered for registration of transfer or exchange 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 any change in the location of such office or agency. If at any time
the Company shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any matter
relieve the Company of its obligations to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.11. Change of Control.
(a) In the event of a Change of Control, the Company will
make an offer to purchase all of the then outstanding Notes at a purchase price
in cash equal to 101% of the
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aggregate principal amount thereof, plus accrued and unpaid interest to the date
of purchase, in accordance with the terms set forth below in Section 4.11(b)-(e)
(a "Change of Control Offer").
(b) Within 30 days following the occurrence of any Change of
Control, the Company shall mail to each Holder at such Holder's registered
address a notice stating: (i) that a Change of Control has occurred and that
such Holder has the right to require the Company to repurchase all or a portion
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest to the date of purchase (the "Change of Control
Purchase Date"), which shall be a Business Day, specified in such notice, that
is not earlier than 30 days or later than 60 days from the date such notice is
mailed, (ii) the amount of accrued and unpaid interest as of the Change of
Control Purchase Date, (iii) that any Note not tendered will continue to accrue
interest, (iv) that, unless the Company defaults in the payment of the purchase
price for the Notes payable pursuant to the Change of Control Offer, any Notes
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest on and after the Change of Control Purchase Date, (v) that
Holders electing to tender any Note or portion thereof will be required to
surrender their Note, with a form entitled "Option of Holder to Elect Purchase"
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Purchase Date, provided, that, Holders electing to tender only a portion of any
Note must tender a principal amount of $1,000 or integral multiples thereof;
(vi) that Holders will be entitled to withdraw their election to tender Notes if
the Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the 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,
subject to Section 2.15, Holders whose Notes are accepted for payment in part
will be issued new Notes equal in principal amount to the unpurchased portion of
Notes surrendered, provided, that, only Notes in a principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part.
(c) The Company shall furnish to the Trustee, at least seven
Business Days before notice of the corresponding Change of Control Offer is to
be mailed to Holders, an Officers' Certificate setting forth that the Change of
Control Offer is being made pursuant to Section 4.11, the Change of Control
Purchase Date, the maximum principal amount of Notes the Company is offering to
purchase pursuant to such Change of Control Offer, the purchase price for such
Notes, the amount of accrued and unpaid interest on such Notes as of the Change
of Control Purchase Date and, the manner in which Notes are to be selected for
purchase, in accordance with Section 4.11(d), in the event less than all Notes
tendered are to be purchased.
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The Company will also provide the Trustee a copy of the
notice sent to holders pursuant to Section 4.11(b) and any additional
information that the Trustee reasonably requests in connection with any Change
of Control Offer.
(d) On the Change of Control Purchase Date, the Company will
(i) accept for payment all Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent the aggregate
purchase price of all Notes or portions thereof accepted for payment and any
accrued and unpaid interest on such Notes as of the Change of Control Purchase
Date, and (iii) deliver or cause to be delivered to the Trustee all Notes
tendered pursuant to the Change of Control Offer, together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. If less than all Notes tendered pursuant to the Change of Control Offer
are to be purchased by the Company for any reason consistent with this
Indenture, the Trustee, on behalf of the Company, shall select the outstanding
Notes to be purchased by the Company 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 such an exchange, the Trustee on behalf of
the Company, shall select the outstanding Notes to be purchased, on a pro rata
basis, by lot or by such method as the Trustee deems fair and appropriate;
provided that Notes purchased in part shall only be purchased in integral
multiples of $1,000. The Paying Agent shall promptly mail to each Holder of
Notes or portions thereof accepted for payment an amount equal to the purchase
price for such Notes plus any accrued and unpaid interest thereon, and the
Company shall execute and issue and the Trustee shall promptly authenticate and
mail to such Holder of Notes accepted for payment in part a new Note equal in
principal amount to any unpurchased portion of the Notes, and any Note not
accepted for payment in whole or in part for any reason consistent with this
Indenture shall be promptly returned to the Holder of such Note. On and after a
Change of Control Purchase Date, interest will cease to accrue on the Notes or
portions thereof accepted for payment, unless the Company defaults in the
payment of the purchase price therefor. The Company will announce the results of
the Change of Control Offer to Holders of the Notes on or as soon as practicable
after the Change of Control Purchase Date.
(e) The Company will comply with the applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act, and all
other applicable securities laws and regulations in connection with any Change
of Control Offer.
SECTION 4.12. Special Offer upon Failure to Consummate Cherokee Acquisition.
(a) In the event the Cherokee Acquisition is not consummated
prior to the Special Offer Notice Date, the Company will be obligated to make an
offer to purchase up to $35 million aggregate principal amount of Notes at a
price equal to 101% of such principal
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amount, plus accrued and unpaid interest to the date of purchase, in accordance
with the terms set forth below in Section 4.12(b)-(e) (a "Special Offer").
(b) On the Special Offer Notice Date, the Company shall mail
to each Holder, at such Holder's registered address, a notice stating: (i) that
the Cherokee Acquisition has not occurred and the Company is offering to
purchase $35 million aggregate principal amount of Notes at a purchase price
(the "Special Offer Price") in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest to the date of purchase (the
"Special Offer Purchase Date"), which shall be a Business Day, specified in such
notice, that is not earlier than 30 days or later than 60 days (such 60th day
being referred to as the "Final Special Offer Purchase Date") from the date such
notice is mailed, (ii) the amount of accrued and unpaid interest as of the
specified Special Offer Purchase Date, (iii) that any Note not tendered will
continue to accrue interest, (iv) that unless the Company defaults in the
payment of the purchase price for the Notes payable pursuant to the Special
Offer, any Notes accepted for payment pursuant to the Special Offer shall cease
to accrue interest on and after the Special Offer Purchase Date, (v) that
Holders electing to tender any Note or portion thereof will be required to
surrender their Note with a form entitled "Option of Holder to Elect Purchase"
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Special Offer Purchase
Date, provided, that, Holders electing to tender only a portion of any Note must
tender a principal amount of $1,000 or integral multiples thereof; (vi) that
Holders will be entitled to withdraw their election to tender Notes if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Special Offer Purchase Date, a telegram, facsimile
transmission or letter setting forth the name of the 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, subject
to Section 2.15, Holders whose Notes are accepted for payment in part will be
issued new Notes equal in principal amount to the unpurchased portion of Notes
surrendered, provided, that, only Notes in principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part.
(c) The Company shall furnish to the Trustee, at least seven
Business Days before notice of the corresponding Special Offer is to be mailed
to Holders, an Officers' Certificate setting forth that if the Cherokee
Acquisition is not consummated prior to the Special Offer Notice Date that the
Special Offer will be made pursuant to Section 4.12, the Special Offer Purchase
Date, that the Company is offering to purchase $35 million principal amount of
Notes pursuant to such Special Offer, the Special Offer Purchase Price for such
Notes, the amount of accrued and unpaid interest on such Notes as of the Special
Offer Purchase Date and, the manner in which Notes are to be selected for
purchase, in accordance with Section 4.12(d).
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The Company will also provide the Trustee with a copy of the
notice sent to holders pursuant to Section 4.12(b) and additional information
that the Trustee reasonably requests in connection with any Special Offer.
(d) On the Special Offer Purchase Date, the Company will (i)
accept for payment $35 million aggregate principal amount of Notes or such
lesser amount as is tendered pursuant to the Special Offer and (ii) deliver or
cause to be delivered to the Trustee all Notes tendered pursuant to the Special
Offer, together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Company, and the Trustee will apply the Trust
Funds to the purchase of such Notes. If less than all Notes tendered pursuant to
the Special Offer are accepted for payment by the Company for any reason
consistent with the Indenture, selection of the Notes to be purchased by the
Company shall be in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate; provided that Notes accepted for payment in
part shall only be purchased in integral multiples of $1,000. The Paying Agent
shall promptly mail to each holder of Notes or portions thereof accepted for
payment an amount equal to the purchase price for such Notes plus any accrued
and unpaid interest thereon, and, subject to Section 2.15, the Company shall
execute and issue and the Trustee shall promptly authenticate and mail to such
holder of Notes accepted for payment in part a new Note equal in principal
amount to any unpurchased portion of the Notes, and any Note not accepted for
payment in whole or in part for any reason consistent with this Indenture shall
be promptly returned to the holder of such Note. On and after the Special Offer
Purchase Date, interest will cease to accrue on the Notes or portions thereof
accepted for payment, unless the Company defaults in the payment of the purchase
price therefor. The Company will announce the results of the Special Offer to
Holders of the Notes on or as soon as practicable after the Special Offer
Purchase Date.
(e) The Company will comply with the applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act, and all
other applicable securities laws and regulations in connection with any Special
Offer.
SECTION 4.13. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, make any Asset Sale unless (i) the Company or such Subsidiary,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the fair market value (determined by the Board of Directors in
good faith, which determination shall be evidenced by a board resolution) of the
assets or other property sold or disposed of in the Asset Sale, and (ii) at
least 75% of such consideration is in the form of cash or Cash Equivalents;
provided that for purposes of this covenant "cash" shall include the amount of
any liabilities (other than liabilities that are by their terms subordinated to
the Notes or any Subsidiary Guarantee) of the Company
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or such Subsidiary (as shown on the Company's or such Subsidiary's most recent
balance sheet or in the notes thereto) that are assumed by the transferee of any
such assets or other property in such Asset Sale (and excluding any liabilities
that are incurred in connection with or in anticipation of such Asset Sale), but
only to the extent that such assumption is effected on a basis under which there
is no further recourse to the Company or any of its Subsidiaries with respect to
such liabilities.
(b) Within 270 days after any Asset Sale, the Company may
elect to apply or cause to be applied the Net Proceeds from such Asset Sale to
(a) repay amounts outstanding under the Credit Facility, and permanently reduce
the commitments or amounts available to be borrowed thereunder by the same
amount, (b) repay amounts outstanding under Other Senior Debt that is secured by
the asset being sold, to the extent repayment is required by the terms of the
agreement governing the same, (c) use no more than the Other Senior Debt Pro
Rata Share of such Net Cash Proceeds to repay amounts outstanding under Other
Senior Debt and/or (d) make an investment in, or acquire assets directly or
reasonably related to, the business of the Company and its Subsidiaries existing
on the Issue Date. Pending the final application of any such Net Proceeds, the
Company may temporarily reduce amounts outstanding under the Credit Facility or
temporarily invest such Net Proceeds in any manner permitted by this Indenture.
Any Net Proceeds from an Asset Sale not applied or invested as provided in the
first sentence of this paragraph within 270 days of such Asset Sale will be
deemed to constitute "Excess Proceeds" on the 271st day after such Asset Sale.
(c) Not later than 10 Business Days after any date (an "Asset
Sale Offer Trigger Date") that the aggregate amount of Excess Proceeds exceeds
$10,000,000, the Company shall commence an offer to purchase the maximum
principal amount of Notes that may be purchased out of all such Excess Proceeds
(an "Asset Sale Offer") at a price in cash equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to the date of purchase (the "Asset
Sale Offer Purchase Date"). The offer to purchase shall remain open for a
minimum of 20 business days or such longer period as is required by law. To the
extent that any Excess Proceeds remain after completion of an Asset Sale Offer,
the Company may use the remaining amount for general corporate purposes and such
amount shall no longer constitute "Excess Proceeds."
(d) Within 10 Business Days following any Asset Sale Offer
Trigger Date, the Company shall mail to each holder of Notes at such holder's
registered address a notice stating: (i) that an Asset Sale Offer Trigger Date
has occurred and that the Company is offering to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds at an offer
price in cash equal to 100% of the principal amount thereof, plus accrued and
unpaid interest to the Asset Sale Offer Purchase Date, which shall be a Business
Day, specified in such notice, that is not earlier than 30 days or later than 60
days from the date such notice is mailed, (ii) the amount of accrued and unpaid
interest as of the Asset Sale Offer
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Purchase Date, (iii) that any Note not tendered will continue to accrue
interest, (iv) that, unless the Company defaults in the payment of the purchase
price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted
for payment pursuant to the Asset Sale Offer shall cease to accrue interest on
and after the Asset Sale Offer Purchase Date, (v) that Holders electing to
tender any Note or portion thereof will be required to surrender their Note,
with a form entitled "Option of Holder to Elect Purchase" completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Asset Sale Offer Purchase Date;
provided that Holders electing to tender only a portion of any Note must tender
a principal amount of $1,000 or integral multiples thereof; (vi) that Holders
will be entitled to withdraw their election to tender Notes if the Paying Agent
receives, not later than the close of business on the third Business Day
preceding the Asset Sale Offer Purchase Date, a telegram, facsimile transmission
or letter setting forth the name of the 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, subject to Section 2.15,
Holders whose Notes are accepted for payment in part will be issued new Notes
equal in principal amount to the unpurchased portion of Notes surrendered;
provided that only Notes in a principal amount of $1,000 or integral multiples
thereof will be accepted for payment in part.
(e) The Company shall furnish to the Trustee, at least seven
Business Days before notice of the corresponding Asset Sale Offer is to be
mailed to Holders, an Officers' Certificate setting forth that the Asset Sale
Offer is being made pursuant to Section 4.13, the Asset Sale Offer Purchase
Date, the maximum principal amount of Notes the Company is offering to purchase
pursuant to such Asset Sale Offer, the purchase price for such Notes, the amount
of accrued and unpaid interest on such Notes as of the Asset Sale Offer Purchase
Date and, the manner in which Notes are to be selected for purchase, in
accordance with Section 4.13(f), in the event less than all Notes tendered are
to be purchased.
The Company will also provide the Trustee a copy of the
notice sent to holders pursuant to Section 4.13(d) and any additional
information that the Trustee reasonably requests in connection with any Asset
Sale Offer.
(f) On the Asset Sale Offer Purchase Date, the Company will
(i) accept for payment the maximum principal amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer that can be purchased out of Excess
Proceeds from such Asset Sale, (ii) deposit with the Paying Agent the aggregate
purchase price of all Notes or portions thereof accepted for payment and any
accrued and unpaid interest on such Notes as of the Asset Sale Offer Purchase
Date, and (iii) deliver or cause to be delivered to the Trustee all Notes
tendered pursuant to the Asset Sale Offer, together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. If less than all Notes tendered pursuant to the Asset Sale Offer are to
be purchased by the Company for any reason consistent with this Indenture, the
Trustee, on behalf of the Company, shall select the outstanding Notes to be
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purchased by the Company 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 such an exchange, the Trustee on behalf of the Company,
shall select the outstanding Notes to be purchased, on a pro rata basis, by lot
or by such method as the Trustee deems fair and appropriate; provided that Notes
purchased in part shall only be purchased in integral multiples of $1,000. The
Paying Agent shall promptly mail to each holder of Notes or portions thereof
accepted for payment an amount equal to the purchase price for such Notes plus
any accrued and unpaid interest thereon, and, subject to Section 2.15, the
Company shall execute and issue and the Trustee shall promptly authenticate and
mail to such Holder of Notes accepted for payment in part a new Note equal in
principal amount to any unpurchased portion of the Notes, and any Note not
accepted for payment in whole or in part shall be promptly returned to the
Holder of such Note. On and after an Asset Sale Offer Purchase Date, interest
will cease to accrue on the Notes or portions thereof accepted for payment,
unless the Company defaults in the payment of the purchase price therefor. The
Company will announce the results of the Asset Sale Offer to Holders on or as
soon as practicable after the Asset Sale Offer Purchase Date.
(g) The Company will comply with the applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act, and all
other applicable securities laws and regulations in connection with any Asset
Sale Offer.
SECTION 4.14. Limitation on Issuance and Sale of
Preferred Stock of Subsidiaries.
The Company (a) will not, and will not permit any Subsidiary
of the Company to, transfer, convey, sell or otherwise dispose of any shares of
Preferred Stock of such Subsidiary or any other Subsidiary (other than to the
Company or a Subsidiary Guarantor) and (b) will not permit any Subsidiary of the
Company to issue shares of its Preferred Stock, or securities convertible into,
or warrants, rights or options to subscribe for or purchase shares of, its
Preferred Stock to any person other than to the Company or a Subsidiary
Guarantor.
SECTION 4.15. Future Subsidiary Guarantors.
The Company shall cause each Subsidiary of the Company formed
or acquired after the Issue Date to issue a Subsidiary Guarantee and execute and
deliver an indenture supplemental to this Indenture as a Subsidiary Guarantor.
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SECTION 4.16. Maintenance of Properties.
The Company will cause all properties used in the conduct of its
business or the business of any Subsidiary of the Company to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or any Subsidiary of the
Company from (i) discontinuing the operation or maintenance of any of such
properties if such discontinuance is, as determined by the Board of Directors in
good faith, desirable in the conduct of the business of the Company or of any of
its Subsidiaries, (ii) making an Asset Sale that complies with Section 4.13 or
(iii) entering into a transaction permitted by Section 5.01.
SECTION 4.17. Maintenance of Insurance.
The Company shall, and shall cause each of its Subsidiaries to,
keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character usually is so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 4.18. Deposit of Trust Funds with Trustee Pending Consummation of
Cherokee Acquisition.
(a) On the Issue Date, the Company shall deposit with the Trustee
in the account specified in Section 4.18(b), in the form of cash or Cash
Equivalents, $35 million plus an additional amount sufficient to consummate the
Special Offer on ___________, 1997 (the "Final Special Offer Purchase Date") at
the Special Offer Price (such deposited amounts collectively, the "Trust
Funds").
(b) The Company shall deposit the Trust Funds into, and shall
maintain with the Trustee, an account (the "Collateral Account") designated
"Marine Midland Bank, as Trustee," which account shall be under the sole
dominion and control of the Trustee. Amounts on deposit in the Collateral
Account shall be held as cash or shall be invested and reinvested from time to
time, as directed in writing by the Company, in Cash Equivalents, which shall be
held in the Collateral Account. Any income, including any interest or capital
gains received with respect to the balance from time to time standing to the
credit of the Collateral Account, shall remain, or be deposited, in the
Collateral Account. The Trustee shall have the power to
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sell or liquidate the investments in the Collateral Account whenever the Trustee
shall be required pursuant to Section 4.18(d) to release all or any portion of
the amounts in the Collateral Account to permit the consummation of the Cherokee
Acquisition or to employ such amounts to effect a Special Offer with respect to
of the Notes. Subject to Article VII hereof, the Trustee, solely in its
individual capacity, hereby waives any rights it may have in such individual
capacity to the Collateral Account and all rights and interest therein,
including, without limitation, any such rights arising through counterclaim,
defense, recoupment, charge, lien or right of set-off. The Trustee shall not
have any liability for any loss suffered as a result of any investment made as
provided above, any liquidation of any such investment prior to its maturity, or
the failure of any authorized person of the Company to give the Trustee written
instruction to invest or reinvest the amounts in the Collateral Account or any
earnings thereon.
(c) In order to secure the full and punctual payment and
performance of the Company's obligation to offer to purchase Notes in the event
the Cherokee Acquisition is not consummated on or prior to the Special Offer
Notice Date, the Company hereby grants to the Trustee, for the benefit of the
Holders, a continuing security interest in and to the Trust Funds, whether now
owned or existing or hereafter acquired or arising. The Trustee shall have no
obligation to file any financing statement or otherwise take any action to
maintain or perfect any such security interest.
(d) The Trustee shall hold the Trust Funds, for the benefit of the
Holders, until the earliest to occur of:
(A) (x) the date of consummation of the Cherokee Acquisition as
specified in an Officers' Certificate from the Company to the Trustee (1)
stating that the Cherokee Acquisition is to be consummated on a date
specified therein, which shall be at least two Business Days (or such
shorter period as the Company and the Trustee shall mutually agree) after
the date of such Officers' Certificate, (2) stating that such consummation
will be, in all material respects, in accordance with the terms and
conditions described in the Prospectus, and (3) requesting the Trustee to
release the Trust Funds on the date of such consummation to the order of
the Company or its assignee for application to the concurrent consummation
of the Cherokee Acquisition; and (y) receipt by the Trustee of an Opinion
of Counsel to the effect that all conditions precedent described in the
preceding clause (x) have been satisfied; or
(B) the Special Offer Purchase Date, as specified in an Officers'
Certificate from the Company to the Trustee in accordance with Section
4.12(c).
(e) On the date of consummation of the Cherokee Acquisition, and
following such acquisition, the Holders' security interest in the Collateral
Account shall terminate and the Trustee shall release the Trust Funds in
immediately available funds to the order of the
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Company or its assigns, as specified in the Officers' Certificate delivered
pursuant to Section 4.18(d)(A).
(f) On the Special Offer Purchase Date as specified in an Officers'
Certificate delivered pursuant to Section 4.12(c), the Trustee shall apply the
Trust Funds in accordance with Section 4.12(d) and the Holders' security
interest in the Collateral Account shall terminate on and as of such Special
Offer Purchase Date.
(g) Any amounts remaining in the Collateral Account on the Special
Offer Purchase Date after application of the Trust Funds as specified in Section
4.18(f) shall be paid by the Trustee to the Company.
(h) The Company will comply with Sections 314(b) and 314(d) of the
TIA, as applicable, including, without limitation, providing an Opinion of
Counsel with respect to Section 3.14(b) and the certificates or opinions of
counsel with respect to Section 3.14(d), in connection with the deposit and
release of the Trust Funds.
SECTION 4.19. Limitation on Transactions with Interested Persons.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any Affiliate
of the Company or any beneficial owner of five percent or more of any class of
Capital Stock of the Company or any Subsidiary of the Company or any officer or
director of the foregoing (each, an "Interested Person") unless (i) such
transaction or series of transactions is on terms that are no less favorable to
the Company or such Subsidiary, as the case may be, than would be available in a
comparable transaction in arm's-length dealings with an unrelated third party,
and (ii) (a) with respect to any transaction or series of transactions involving
aggregate payments in excess of $100,000, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above and such transaction or series of
related transactions has been approved by a majority of the members of the Board
of Directors of the Company (and approved by a majority of the Independent
Directors or, in the event there is only one Independent Director, by such
Independent Director), and (b) with respect to any transaction or series of
transactions involving aggregate payments in excess of $2 million, the Company
delivers to the Trustee an opinion to the effect that such transaction or series
of transactions is fair to the Company or such Subsidiary from a financial point
of view issued by an investment banking firm of national standing.
Notwithstanding the foregoing, this provision will not apply to (i) employment
agreements or compensation or employee benefit arrangements with (including,
without limitation, any stock options granted to) any officer, director or
employee of
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the Company entered into in the ordinary course of business (including customary
benefits thereunder), (ii) any transaction entered into by or among the Company
or any Subsidiary Guarantor and one or more Subsidiary Guarantors, (iii)
transactions pursuant to agreements existing on the Issue Date, including,
without limitation, the Credit Facility and (iv) loans or advances to officers
of the Company for bona fide business purposes of the Company in the ordinary
course of business not in the excess of $500,000 in the aggregate at any one
time outstanding.
SECTION 4.20. Limitation on Lines of Business.
The Company will not, and will not permit any Subsidiary of the
Company to, engage in or conduct any business other than the ownership and
operation of public pay telephones and lines of business integral or ancillary
thereto; provided, that, the primary business of the Company and its
Subsidiaries shall continue to be the ownership and operation of public pay
telephones.
SECTION 4.21. Limitation on Liens.
The Company will not, and will not permit any Subsidiary of the
Company to, directly or indirectly, create, incur, assume or suffer to exist any
Lien (other than Permitted Liens) on any asset now owned or hereafter acquired,
or any income or profits therefrom or assign or convey any right to receive
income therefrom to secure any Indebtedness unless simultaneously therewith (a)
if the Lien is created by the Company, the Notes and (b) if the Lien is created
by a Subsidiary of the Company, the Subsidiary Guarantees are, in each case,
secured equally and ratably, in the case of Liens securing Indebtedness that is
not Subordinated Debt, and on a senior priority basis, in the case of Liens
securing Subordinated Debt.
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company shall not consolidate or merge with or into
(whether or not the Company is the Surviving Person), or, directly or indirectly
through one or more Subsidiaries, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person or Persons (other than a
Subsidiary Guarantor) unless (i) the Surviving Person is a corporation organized
or
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existing under the laws of the United States, any state thereof or the District
of Columbia; (ii) the Surviving Person (if other than the Company) assumes all
the obligations of the Company under this Indenture and the Notes pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee; (iii)
at the time of and immediately after such Disposition, no Default or Event of
Default shall have occurred and be continuing; and (iv) the Surviving Person
will (A) have Consolidated Net Worth (immediately after giving effect to the
Disposition on a pro forma basis) equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction, and (B) at the time
of such Disposition and after giving pro forma effect thereto, the Surviving
Person would be permitted to issue at least $1.00 of additional Indebtedness
pursuant to Section 4.07(a).
(b) Prior to the consummation of any proposed Disposition, merger
or consolidation of the Company or a Subsidiary Guarantor or the sale of all or
substantially all of the assets of the Company or a Subsidiary Guarantor (other
than a Disposition to a Subsidiary Guarantor), the Company shall deliver to the
Trustee an Officers' Certificate stating that such transaction complies with
Article V or Section 10.01(e), as the case may be, of this Indenture and an
Opinion of Counsel stating that such transaction and the supplemental indenture,
if required, comply with Article V or Section 10.01(e), as the case may be, of
this Indenture.
SECTION 5.02. Surviving Person Substituted.
In the event of any transaction (other than a lease) described in
and complying with the conditions listed in Section 5.01(a) in which the Company
or the Subsidiary Guarantor, as the case may be, is not the Surviving Person and
the Surviving Person is to assume all the obligations of the Company or the
Subsidiary Guarantor under the Notes, the Subsidiary Guarantee, as applicable,
and this Indenture pursuant to a supplemental indenture, such Surviving Person
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company or the Subsidiary Guarantor, and the Company or the Subsidiary
Guarantor would be discharged from its obligations under this Indenture, the
Notes or its Subsidiary Guarantee, as the case may be, provided, that solely for
the purpose of calculating amounts described in clause (iii) of Section 4.05(a),
any such Surviving Person shall only be deemed to have succeeded to and be
substituted for the Company with respect to the period subsequent to the
effective time of such transaction (and the Company (before giving effect to
such transaction) shall be deemed to be the "Company" for such purposes for all
prior periods).
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) Each of the following constitutes an "Event of Default":
(i) a default for 30 days in the payment when due of
interest on any Note (whether or not prohibited by the subordination
provisions of this Indenture);
(ii) a default in the payment when due of principal on any
Note (whether or not prohibited by the subordination provisions of this
Indenture), whether upon maturity, acceleration, optional or mandatory
redemption, required repurchase or otherwise;
(iii) failure to perform or comply with any covenant,
agreement or warranty in this Indenture (other than the defaults
specified in clauses (i) and (ii) above) which failure continues for 30
days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the then outstanding Notes;
(iv) except as permitted by this Indenture, any Subsidiary
Guarantee shall for any reason cease to be, or be asserted in writing
by any Subsidiary Guarantor or the Company not to be, in full force and
effect and enforceable in accordance with its terms;
(v) the occurrence of one or more defaults under any
agreements, indentures or instruments under which the Company or any
Subsidiary of the Company then has outstanding Indebtedness in excess
of $5 million in the aggregate and, if not already matured at its final
maturity in accordance with its terms, such Indebtedness shall have
been accelerated;
(vi) one or more judgments, orders or decrees for the
payment of money in excess of $5 million either individually or in the
aggregate shall be entered against the Company or any Subsidiary of the
Company or any of their respective properties and which judgments,
orders or decrees are not paid, discharged, bonded or stayed for a
period of 60 days after their entry;
(vii) any holder or holders of at least $5 million in
aggregate principal amount of Indebtedness of the Company or any
Subsidiary of the Company after a default under such Indebtedness, (a)
shall notify the Company or the Trustee of the intended sale or
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disposition of any assets of the Company or any Subsidiary of the
Company with an aggregate fair market value (as determined in good
faith by the Board of Directors, which determination shall be evidenced
by a board resolution), individually or in the aggregate, of at least
$5 million that have been pledged to or for the benefit of such holder
or holders to secure such Indebtedness or (b) shall commence
proceedings, or take any action (including by way of set-off), to
retain in satisfaction of such Indebtedness or to collect on, seize,
dispose of or apply in satisfaction of such Indebtedness, such assets
of the Company or any Subsidiary of the Company (including funds on
deposit or held pursuant to lock-box and other similar arrangements);
(viii) there shall have been the entry by a court of
competent jurisdiction of (a) a decree or order for relief in respect
of the Company or any Subsidiary of the Company in an involuntary case
or proceeding under any applicable Bankruptcy Law or (b) a decree or
order adjudging the Company or any Subsidiary of the Company bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary of the
Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Subsidiary of the Company
or of any substantial part of their respective properties, or ordering
the winding up or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
days; or
(ix) (a) the Company or any Subsidiary of the Company
commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (b) the Company or any Subsidiary of the Company
consents to the entry of a decree or order for relief in respect of the
Company or such Subsidiary of the Company in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, (c) the
Company or any Subsidiary of the Company files a petition or answer or
consent seeking reorganization or relief under any applicable federal
or state law, (d) the Company or any Subsidiary of the Company (x)
consents to the filing of such petition or the appointment of or taking
possession by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or such
Subsidiary of the Company or of any substantial part of their
respective property, (y) makes an assignment for the benefit of
creditors or (z) admits in writing its inability to pay its debts
generally as they become due or (e) the Company or any Subsidiary of
the Company takes any corporate action in furtherance of any such
actions in this paragraph (ix).
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(b) Any notice of default delivered to the Company by the Trustee
or by Holders of Notes with a copy to the Trustee must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
SECTION 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified
under Section 6.01(a)(viii) or (ix) with respect to the Company or any
Subsidiary Guarantor) occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may, and
the Trustee at the request of such Holders shall, declare all the Notes to be
due and payable immediately. In the case of an Event of Default arising from the
events specified in Sections 6.01(a)(viii) or (ix) with respect to the Company
or any Subsidiary Guarantor, the principal of, premium, if any, and any accrued
and unpaid interest on all outstanding Notes shall ipso facto become immediately
due and payable without further action or notice.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, or premium,
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. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under this Indenture except (i) a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on,
the Notes (which may only be waived with the consent of each Holder of Notes
affected), or (ii) in respect of a covenant or provision which under this
Indenture cannot be modified or amended without the consent of each Holder of
Notes affected. Subject to certain limitations, holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from holders of the
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Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, premium or interest) if
it determines that withholding notice is in their interest.
SECTION 6.05. Control by Majority of Holders.
Subject to Section 7.01(e), the Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it by this Indenture. However, the
Trustee may (i) refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability or (ii)
take any additional actions deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.06. Limitation of Suits by Holders.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if: (1) the Holder gives to the Trustee notice of a continuing Event
of Default; (2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy; (3) such
Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense; (4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of indemnity;
and (5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request. A Holder may not use this Indenture to
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder. Holders of the Notes may not enforce this Indenture, except
as provided herein.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, and premium, if any, and interest
on, a Note, on or after a respective due date expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective date,
shall not be impaired or affected without the consent of the Holder.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for (i) the
principal, premium, if any, and interest remaining unpaid on the Notes, (ii)
interest on overdue principal and premium, if any, and, to the extent lawful,
interest, and (iii) such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
("Trustee Expenses").
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable to have the claims of the Trustee
(including any claim for Trustee Expenses and for amounts due under Section
7.07) and the Holders allowed in any Insolvency or Liquidation Proceeding
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute to Holders any money or other property payable or deliverable on any
such claims and each Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding to make such payments to the Trustee, and if the Trustee
shall consent to the making of such payments directly to the Holders any such
Custodian is hereby authorized to make such payments directly to the Holders,
and to pay to the Trustee any amount due to it hereunder for Trustee Expenses,
and any other amounts due the Trustee under Section 7.07; provided, however,
that the Trustee shall not be authorized to (i) consent to, accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or (ii) vote in
respect of the claim of any Holder in any such Insolvency or Liquidation
Proceeding. To the extent that the payment of any such Trustee Expenses, and any
other amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties which the Holders may be entitled to
receive in such proceeding, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
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:
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First: to the Trustee for Trustee Expenses for amounts due
under Section 7.07;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Notes for
principal, premium, if any, and interest,
respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default occurs (and has not been cured) the
Trustee shall (i) exercise the rights and powers vested in it by this Indenture,
and (ii) use the same degree of care and skill in exercising such rights and
powers as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. The Trustee shall not be charged with knowledge of
any default or Event of Default unless either (1) A Trust Officer of the Trustee
shall have actual knowledge of such default or Event of Default or (2) written
notice of such default or Event of Default shall have been given to the Trustee
by any Holder or by the Company or any obligor on the Notes.
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(b) Except during the continuance of an Event of Default: (i) the
Trustee's duties shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether they conform to this Indenture's
requirements.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except, that: (i) this Section 7.01(c) does not limit the effect of
Section 7.01(b); (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction it receives pursuant to Section 6.02, 6.04 or 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee shall be subject to paragraphs (a), (b), (c) and (e) of this
Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as it may agree in writing with the Company. Except as
specified in Section 4.18 with respect to the Trust Funds, money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely, and shall be fully protected in acting or
refraining from acting, on any document it believes in good faith to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in any such document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matter as it may see fit, and, if the Trustee shall determine to
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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.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel; provided that such action
or omission does not constitute gross negligence. The Trustee may consult with
counsel and 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 under this Indenture in good faith and in reliance on such
advice or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits in good faith that it believes to be authorized or within its rights or
powers.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not Trustee. However,
if the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee,
or resign. Each Agent shall have the same rights as the Trustee under this
Section 7.03.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Notes or
the Prospectus; it shall not be accountable for the Company's use of the
proceeds from the Notes or for any money paid to the Company or upon the
Company's direction under any provisions of this Indenture; it shall not be
responsible for the use or application of any money that any Paying Agent other
than the Trustee receives; and, it shall not be responsible for any statement or
recital in this Indenture or
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any statement in the Notes or any other document executed in connection with the
sale of the Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. Notice to Holders of Defaults and Events of Default.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment on any Note (including any failure
to redeem Notes called for redemption or any failure to purchase Notes tendered
pursuant to an Offer that are required to be purchased by the terms of this
Indenture), the Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a committee of its Trust Officers
determines in good faith that withholding such notice is in the Holders'
interests.
SECTION 7.06. Reports by Trustee to Holders.
On or before June 15 in each year following the date hereof, so
long as any Notes are outstanding hereunder, the Trustee shall mail to Holders a
brief report dated as of such reporting date that complies with Section 313(a)
of the TIA (but if no event described in Section 313(a) of the TIA has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with Section 313(b)(2) of the TIA.
The Trustee shall also transmit by mail all reports as required by Section
313(c) of the TIA.
Within 90 days after any Special Offer, or after the consummation
of the Cherokee Acquisition, if applicable, the Trustee shall mail to Holders a
brief report with respect to the release of the Trust Funds that complies with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall
be filed with the Commission and each stock exchange, if any, on which the Notes
are listed. The Company shall notify the Trustee when the Notes are listed on
any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder, as mutually agreed upon by the Company
and the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all
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reasonable disbursements, advances and expenses it incurs or makes in addition
to the compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and each of its directors,
officers, employees, agents, representatives and counsel against any and all
losses, liabilities or expenses the Trustee incurs arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including, without limitation, the reasonable costs and expenses of
defending itself against any claim in liability in connection with the exercise
or performance of any of its rights, powers or duties under this Indenture,
except as set forth below. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity; provided, however, that failure by the
Trustee to provide the Company with any such notice shall not relieve the
Company of any of its obligations under this Section 7.07. The Trustee shall
cooperate in the defense of any such claim. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The Company's obligations under this Section 7.07 shall survive the
resignation or removal (other than as a result of negligence or willful
misconduct) of the Trustee, satisfaction and discharge of this Indenture or
termination of this Indenture. The Company need not reimburse any expense or
indemnify against any loss or liability the Trustee incurs as a result of its
negligence or willful misconduct.
To secure payment of the Company's obligations under this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
the Trustee holds or collects, except the Trust Funds and any other funds from
time to time held in trust or as security to pay principal of, and premium, if
any, and interest on, particular Notes. Such Lien shall survive the resignation
or removal of the Trustee, the satisfaction and discharge of this Indenture or
the termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(a)(viii) or (ix) occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute administrative expenses under any
Bankruptcy Law without any need to demonstrate substantial contribution under
Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10; (ii) the Trustee is adjudged
a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law; (iii) a Custodian or public officer takes
charge of the Trustee or its property; or (iv) the Trustee becomes incapable of
performing the services of the Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee; provided that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may appoint a successor Trustee to replace any
successor Trustee appointed by Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee; provided that all sums
owing to the retiring Trustee hereunder have been paid. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the retiring Trustee's benefit
with respect to expenses and liabilities relating to the retiring Trustee's
activities prior to being replaced.
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SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times (i) be a corporation organized and
doing business under the laws of the United States of America, of any state
thereof, or the District of Columbia authorized under such laws to exercise
corporate trust powers, (ii) be subject to supervision or examination by federal
or state authority, (iii) have a combined capital and surplus of at least $100
million as set forth in its most recently published annual report of condition,
and (iv) satisfy the requirements of Sections 310(a)(1),(2) and (5) of the TIA.
The Trustee is subject to Section 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) Subject to Sections 8.01(c), 8.02 and 8.06, this Indenture
shall cease to be of any further effect as to all outstanding Notes and
Subsidiary Guarantees after (i) either (a) all Notes heretofore authenticated
and delivered (other than Notes replaced pursuant to Section 2.07) have been
delivered to the Trustee for cancellation or (b) all Notes not previously
delivered for cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee an amount in
United States dollars sufficient to pay and discharge the entire indebtedness on
such Notes not previously delivered to the Trustee for cancellation, for the
principal of, premium, if any, and interest to the date of repayment, (ii) the
Company has paid or caused to be paid all other sums payable under this
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Indenture and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at any
time may terminate (i) all its obligations under this Indenture and the Notes
("Legal Defeasance Option"), or (ii) its obligations under Sections 4.02, 4.03,
4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and
Article V ("Covenant Defeasance Option"). The Company may exercise its Legal
Defeasance Option notwithstanding its prior exercise of its Covenant Defeasance
Option.
If the Company exercises its Legal Defeasance Option, payment of
the Notes may not be accelerated because of an Event of Default. If the Company
exercises its Covenant Defeasance Option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.01(a)(iii).
Upon satisfaction of the conditions set forth in Section 8.02 and
upon the Company's request (and at the Company's expense), the Trustee shall
acknowledge in writing the discharge of those obligations that the Company has
terminated.
(c) Notwithstanding Sections 8.01(a) and (b), the Company's
obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 4.10, 7.07,
7.08, 8.04, 8.05, and 8.06, and the obligations of the Trustee and the Paying
Agent under Section 8.04 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations under Sections 7.07 and 8.05 and the
obligations of the Company, Trustee and Paying Agent under Section 8.04 shall
survive.
SECTION 8.02. Conditions to Defeasance.
In order to exercise either its Legal Defeasance Option and give
effect thereto ("Legal Defeasance") or its Covenant Defeasance Option and give
effect thereto ("Covenant Defeasance"), (i) the Company shall irrevocably
deposit with the Trustee, as trust funds in trust, for the benefit of the
Holders, cash in United States dollars, U.S. Government Obligations, or a
combination thereof, maturing as to principal and interest in such amounts as
will be sufficient, without consideration of any reinvestment of such interest,
in the opinion of a nationally recognized firm of independent public accountants
or a nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Notes on the
stated maturity of such principal or installment of principal or interest; (ii)
in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel confirming that (A) the Company has received from, or
there has been
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published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred; (iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel confirming that the Holders will
not recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred; (iv) no Default or Event of
Default shall have occurred and be continuing on the date of such deposit or
insofar as clauses (viii) and (ix) under Section 6.01 are concerned, at any time
during the period ending on the 91st day after the date of deposit; (v) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound; (vi) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to any rights
of holders of Indebtedness of the Company or any Subsidiary Guarantor,
including, without limitation, those arising under this Indenture, after the
91st day following the deposit and (B) after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally; (vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Notes over the other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding creditors of
the Company or others; (viii) no event or condition shall exist that would
prevent the Company from making payments of the principal of, premium, if any,
and interest on the Notes on the date of such deposit or at any time ending on
the 91st day after the date of such deposit; and (ix) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to either the
Legal Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
SECTION 8.03. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money and/or U.S.
Government Obligations deposited with it pursuant to this Article VIII. The
Trustee or Paying Agent shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of, and premium, if any, and interest on, the Notes.
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SECTION 8.04. Repayment to Company.
After the Notes have been paid in full, the Trustee and the Paying
Agent shall promptly turn over to the Company any excess money or securities
held by them upon the written direction of the Company.
Any money deposited with the Trustee or a Paying Agent pursuant to
this Article VIII for the payment of the principal of, premium, if any, or
interest on, any Note that remains unclaimed for two years after becoming due
and payable shall be paid to the Company on its request; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such money shall cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 8.05. Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee and any
Paying Agent against any tax, fee or other charge imposed on or assessed against
cash and/or U.S. Government Obligations deposited with it pursuant to Section
4.18 or this Article VIII or imposed on or assessed against the principal and
interest received on such cash and/or U.S. Government Obligations.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article VIII; provided, however, that if the Company has made any payment of
principal of, or premium, if any, or interest on, any Notes because of the
reinstatement of its obligations under this
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Indenture and the Notes, the Company shall be subrogated to the Holders' rights
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted Without Consent of Holders.
(a) Notwithstanding Section 9.02, the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to: (i) cure any ambiguity, defect or
inconsistency; (ii) provide for uncertificated Notes in addition to or in place
of certificated Notes; (iii) provide for the assumption of the Company's
obligations to the Holders in the event of any Disposition involving the Company
that is permitted under Article V in which the Company is not the Surviving
Person; (iv) make any change that would provide any additional rights or
benefits to Holders or does not adversely affect the interests of any Holder;
(v) comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; or (vi) add
additional Subsidiary Guarantors pursuant to Section 4.15.
(b) Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended or
supplemental indenture, the Trustee shall join with the Company and the
Subsidiary Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any future
appropriate agreements and stipulations that may be contained in any such
amended or supplemental indenture, but the Trustee shall not be obligated to
enter into an amended or supplemental indenture that affects its own rights,
duties, or immunities under this Indenture or otherwise.
SECTION 9.02. Amendments and Supplements Requiring Consent of Holders.
(a) Except as otherwise provided in Sections 6.04, 9.01(a) and
9.02(c), this Indenture and the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes), and any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of Holders of at least a majority in
principal
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amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
(b) Upon the Company's request and after receipt by the Trustee of
a resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.06, the Trustee shall join with the Company and the
Subsidiary Guarantors in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture affects the Trustee's own rights,
duties, or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but not be obligated to, enter into such amended
or supplemental indenture.
(c) No such modification or amendment may, without the consent of
the Holder of each outstanding Note affected thereby: (i) change the stated
maturity of the principal of, or any installment of interest on, any Note, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or currency or
the manner in which the principal of any Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment after the stated maturity thereof (or, in the case of
redemption, on or after the redemption date); (ii) extend the time for payment
of interest on the Notes; (iii) alter the redemption provisions in the Notes or
this Indenture in a manner adverse to any Holder of the Notes; (iv) amend,
change or modify the obligation of the Company to make and consummate a Change
of Control Offer in the event of a Change of Control or modify any of the
provisions or definitions with respect thereto; (v) reduce the percentage in
principal amount of outstanding Notes, the consent of whose holders is required
for any amended or supplemental indenture or the consent of whose holders is
required for any waiver of compliance with any provision of this Indenture or
any Default hereunder and the consequences provided for hereunder; (vi) modify
any of the provisions of this Indenture relating to any amended or supplemental
indentures requiring the consent of Holders or relating to the waiver of past
defaults or relating to the waiver of any covenant, except to increase the
percentage of outstanding Notes required for such actions or to provide that any
other provision of this Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby; (vii) except as otherwise
permitted under Section 5.01, consent to the assignment or transfer by the
Company of any of its rights and obligations under this Indenture; (viii) alter
the ranking of the Notes or the Subsidiary Guarantees in a manner adverse to
holders of the Notes; or (ix) amend, change or modify the obligation of the
Company to make and consummate a Special Offer or any of the definitions related
thereto in a manner adverse to any holder of Notes.
(d) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or
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waiver under this Section 9.02 becomes effective, the Company shall mail to each
Holder affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental indenture or waiver.
SECTION 9.03. Compliance with TIA.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in an amended supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.04. Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same
Indebtedness as the consenting Holder's Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Note or portion of a Note if the Trustee receives
the notice of revocation before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented to the amendment or waiver.
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Notes entitled to consent to
any amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders of Notes at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders of Notes after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such
90-day period.
(c) After an amendment or waiver becomes effective it shall bind
every Holder, unless it is of the type described in Section 9.02(c), in which
case the amendment or waiver shall only bind each Holder that consented to it
and every subsequent Holder of a Note that evidences the same debt as the
consenting Holder's Note.
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SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver. Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 7.01, shall be fully protected in relying upon, an Officers' Certificate
and Opinion of Counsel pursuant to Sections 11.04 and 11.05 as conclusive
evidence that such amendment or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Company in accordance with its terms.
ARTICLE X
SUBSIDIARY GUARANTEES
SECTION 10.01. Subsidiary Guarantees.
(a) Each Subsidiary Guarantor hereby, jointly and severally,
unconditionally guarantees, on a senior unsecured basis, to each Holder of a
Note authenticated and delivered by the Trustee that: (i) the principal of,
premium, if any, and interest on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, to the extent
lawful, and all other Obligations of the Company to the Holders or the Trustee
under this Indenture and the Notes will be promptly paid in full, all in
accordance with the terms of this Indenture and the Notes; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Obligations, that the Notes will be promptly paid in full when due in accordance
with the terms of such extension or renewal, whether at stated maturity, by
acceleration or otherwise. In the event that the Company fails to pay any amount
guaranteed by the Subsidiary Guarantors for any reason whatsoever, the
Subsidiary Guarantors will be jointly and severally
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obligated to pay such amount immediately. The Subsidiary Guarantors hereby
further agree that their Obligations under this Indenture and the Notes shall be
unconditional and absolute, regardless of the validity, legality or
enforceability of this Indenture or the Notes, the absence of any action to
enforce this Indenture or the Notes, any waiver or consent by any Holder with
respect to any provisions of this Indenture or the Notes, any modification or
amendment of, or supplement to, this Indenture or the Notes, the recovery of any
judgment against the Company or any action to enforce any such judgment, or any
other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Subsidiary Guarantee of the Company's Obligations under
this Indenture and the Notes will not be discharged except by complete
performance by the Company or another Guarantor of such Obligations. If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, any Subsidiary Guarantor or a Custodian of the Company or a Subsidiary
Guarantor any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Holder, the Subsidiary Guarantee of the Company's Obligations
under this Indenture and the Notes by each Subsidiary Guarantor shall, to the
extent previously discharged as a result of any such payment, be immediately
reinstated and be in full force and effect. Each Subsidiary Guarantor hereby
acknowledges and agrees that, as between the Subsidiary Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Company's Obligations under this Indenture and the Notes may be accelerated
as provided in Article VI for purposes of the Subsidiary Guarantees
notwithstanding any stay, injunction or other prohibition preventing such
acceleration, and (y) in the event of any declaration of acceleration of the
Company's Obligations under this Indenture and the Notes as provided in Article
VI, such Obligations (whether or not due and payable) shall forthwith become due
and payable by the Subsidiary Guarantors for the purpose of the Subsidiary
Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of
subrogation, contribution, reimbursement and indemnity, and all other rights,
that such Subsidiary Guarantor would have against the Company at any time as a
result of any payment in respect of its Subsidiary Guarantee (whether
contractual, under section 509 of the Bankruptcy Code, or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to make any
payment in respect of its Subsidiary Guarantee shall be entitled to seek
contribution from the other Subsidiary Guarantors to the extent permitted by
applicable law; provided that each Subsidiary Guarantor agrees that any such
claim for contribution that such Subsidiary Guarantor may have against any other
Subsidiary Guarantor shall be subrogated to the prior payment in full in cash of
all Obligations owed to Holders under or in respect of the Notes.
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(d) Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Subsidiary Guarantor (or substantially
all of its assets) to an entity which is not a Subsidiary of the Company, which
is otherwise in compliance with this Indenture, such Subsidiary Guarantor shall
be deemed released from all its obligations under its Subsidiary Guarantee;
provided that any such termination shall occur only to the extent that all
obligations of such Subsidiary Guarantor under all of its guarantees of, and
under all of its pledges of assets or other security interests which secure,
other Indebtedness of the Company shall also terminate upon such release, sale
or transfer.
(e) Each Subsidiary Guarantor may consolidate with or merge into or
sell its assets to the Company or another Subsidiary Guarantor without
limitation. A Subsidiary Guarantor may consolidate with or merge into or sell
its assets to a corporation other than the Company or another Subsidiary
Guarantor (whether or not affiliated with such Subsidiary Guarantor, but subject
to the provisions described in Section 10.01(d)), provided that (a) if the
Surviving Person is not the Subsidiary Guarantor, the Surviving Person agrees to
assume such Subsidiary Guarantor's obligations under its Subsidiary Guarantee
and all its obligations under this Indenture and (b) such transaction does not
(i) violate any covenants set forth in this Indenture or (ii) result in a
Default or Event of Default under this Indenture immediately thereafter that is
continuing.
SECTION 10.02. Trustee to Include Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company, the term "Trustee" as used in this Article X
shall (unless the context shall otherwise require) be construed as extending to
and including such Paying Agent within its meaning as fully and for all intents
and purposes as if such Paying Agent were named in this Article X in place of
the Trustee.
SECTION 10.03. Limits on Subsidiary Guarantees.
Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under the Subsidiary Guarantees shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of
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each Subsidiary Guarantor, result in the obligations of each Subsidiary
Guarantor under the Subsidiary Guarantees not constituting such fraudulent
transfer or conveyance.
SECTION 10.04. Execution of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in this Article X,
each Subsidiary Guarantor hereby agrees to execute the Subsidiary Guarantee in
substantially the form included in Exhibit A, which shall be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each Subsidiary
Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Article
X shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee. Each such Subsidiary
Guarantee shall be signed on behalf of each Subsidiary Guarantor by an Officer
(who shall have been duly authorized by all requisite corporate actions), and
the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Subsidiary Guarantee on behalf
of such Subsidiary Guarantor. Such signatures upon the Subsidiary Guarantee may
be by manual or facsimile signature of such Officer and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee, and in case any such Officer
who shall have signed the Subsidiary Guarantee shall cease to be such Officer
before the Note on which such Subsidiary Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed the Subsidiary Guarantee had not ceased to be such Officer
of the Subsidiary Guarantor.
SECTION 10.05. Stay, Extension and Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that would
prohibit or forgive each Subsidiary Guarantor from performing its Subsidiary
Guarantee as contemplated herein or which might affect the covenants or the
performance of this Indenture and Notes; and each such Subsidiary Guarantor (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power granted to the Trustee
pursuant to this Indenture, but will suffer and permit the execution of every
such power as though no such law has been enacted.
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SECTION 10.06. Payment.
A payment on account of or with respect to any Subsidiary Guarantee
shall include, without limitation, any direct or indirect payment of principal,
premium or interest with respect to or in connection with any optional
redemption or purchase provisions, any direct or indirect payment payable by
reason of any other Indebtedness or Obligation being subordinated to the
Subsidiary Guarantees, and any direct or indirect payment or recovery on any
claim as a Holder relating to or arising out of this Indenture or any Subsidiary
Guarantee, or the issuance of any Subsidiary Guarantee, or the transactions
contemplated by this Indenture or referred to herein.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provisions of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control.
SECTION 11.02. Notices.
Any notice or communication by the Company, any Subsidiary
Guarantor or the Trustee to the other is duly given if in writing and delivered
in person, mailed by registered or certified mail, postage prepaid, return
receipt requested or delivered by telecopier or overnight air courier
guaranteeing next day delivery to the other's address:
If to the Company or to any Subsidiary Guarantor:
PhoneTel Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (216)
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With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (212)
If to the Trustee:
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
[
]
Attention:
Telephone:
Facsimile:
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; the date receipt is acknowledged, if mailed by registered
or certified mail; when confirmation is received, 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 to his or her address shown on the register maintained by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it. If the
Company
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mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of Section 312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set forth in
Section 11.05) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and (b) an Opinion of Counsel (which
shall include the statements set forth in Section 11.05) stating that, in the
opinion of such counsel, all such conditions precedent provided for in this
Indenture relating to the proposed action have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to Section 314(a)(4) of the TIA) shall include: (1) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
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 (4) a statement as to whether, in such
Person's opinion, such condition or covenant has been complied with.
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SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. Legal Holidays.
If a payment date is a Legal Holiday, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
SECTION 11.08. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary Guarantor shall have any liability for any obligation
of the Company or any Subsidiary Guarantor under this Indenture, the Notes or
the Subsidiary Guarantees. Each Holder by accepting a Note (including Subsidiary
Guarantees) waives and releases such Persons from all such liability and such
waiver and release is part of the consideration for the issuance of the Notes.
SECTION 11.09. Counterparts.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 11.10. Initial Appointments, Compliance Certificates.
The Company initially appoints the Trustee as Paying Agent,
Registrar and authenticating agent. The first compliance certificate to be
delivered by the Company to the Trustee pursuant to Section 4.03 shall be for
the fiscal year ending on December 31, 1996.
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SECTION 11.11. Governing Law.
The laws of the State of New York shall govern this Indenture and
the Notes, without regard to the conflict of laws provisions thereof.
SECTION 11.12. 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 of its Subsidiaries, and no other
indenture, loan or debt agreement may be used to interpret this Indenture.
SECTION 11.13. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind any successor of the Company. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.14. Severability.
If 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 11.15. No Recourse Against Others.
No director, officer, employee, incorporator, or stockholder of the
Company shall have any liability for any obligations of the Company under the
Indenture or the Notes. Each Holder by accepting a Note waives and releases such
persons from all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
SECTION 11.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture, and shall in
no way modify or restrict any of the terms or provisions of this Indenture.
84
SIGNATURES
THE COMPANY:
PHONETEL TECHNOLOGIES, INC.
By: ________________________________
Name:
Title:
85
THE SUBSIDIARY GUARANTORS:
PUBLIC TELEPHONE CORPORATION
WORLD COMMUNICATIONS, INC.
PARAMOUNT COMMUNICATIONS SYSTEMS,
INC.
NORTHERN FLORIDA TELEPHONE
CORPORATION
PAYPHONES OF AMERICA, INC.
PHONETEL CCI, INC.
For each of the above:
By: ________________________________
Name:
Title:
86
MARINE MIDLAND BANK,
as Trustee
By: ________________________________
Name:
Title:
87
Schedule I
Subsidiary Guarantors Existing on the Issue Date
Name of Subsidiary Jurisdiction of Incorporation
1. Public Telephone Corporation Indiana
2. World Communications, Inc. Missouri
3. Paramount Communications
Systems, Inc. Florida
4. Northern Florida Telephone
Corporation Florida
5. Payphones of America, Inc. Ohio
6. PhoneTel CCI, Inc. Texas
88
[FORM OF NOTE]
EXHIBIT A
(Face of Note)
CUSIP No. [ ]
PHONETEL TECHNOLOGIES, INC.
% Senior Note due 2006
No. ____________ $__________
PhoneTel Technologies, Inc., an Ohio corporation (hereinafter
called the "Company," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ________________ or registered assigns, the principal sum of
_______________________ Dollars on ___________________, 2006.
Interest Payment Dates: , and , commencing
, 1997
Record Dates:
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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated: , 1996
PHONETEL TECHNOLOGIES, INC.
By: ______________________________
By: ______________________________
89
CERTIFICATE OF AUTHENTICATION
This is one of the % Senior Notes due 2006 referred to in the within
mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By: ______________________
Authorized Signatory
90
(Back of Note)
% SENIOR NOTE DUE 2006
1. INTEREST. PhoneTel Technologies, Inc. (the "Company") promises
to pay interest on the principal amount of this Note at the rate and in the
manner specified below. Interest on this Note will accrue at % per annum from
the date this Note is issued until maturity and will be payable semiannually in
cash on and of each year, or if any such day is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date"). Interest
on this Note will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from the date of original issuance;
provided that the first Interest Payment Date shall be , 1997. The Company
shall pay interest on overdue principal and premium, if any, from time to time
on demand at the rate of 2% per annum in excess of the interest rate then in
effect and shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on this Note
(except defaulted interest) to the Person who is the registered Holder of this
Note at the close of business on the record date for the next Interest Payment
Date even if such Note is cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments on such Notes. The Company will pay principal, premium, 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. However, the Company may
pay principal, premium, if any, and interest by check payable in such money, and
any such check may be mailed to a Holder's registered address and, in the case
of a Global Note, may pay principal, premium, if any, and interest by wire
transfer of immediately available funds to the account specified by the Holder
thereof.
3. PAYING AGENT AND REGISTRAR. Marine Midland Bank (the "Trustee")
will initially act as the Paying Agent and Registrar. The Company may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. The Company or any of its Affiliates may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture,
dated as of , 1996 (the "Indenture"), by and among the Company, as
issuer of the Notes, each Subsidiary of the Company existing on the Issue Date
as set forth in Schedule I to the Indenture and each of the Company's
Subsidiaries which becomes a guarantor of the Notes in compliance with the
provisions set forth under Section 4.15 of the Indenture that executes a
supplemental indenture in which such Subsidiary agrees to be
91
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bound by the terms of the Indenture as guarantors of the Company's obligations
under the Indenture and the Notes (each a "Subsidiary Guarantor") and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the original
issuance of the Notes (the "Trust Indenture Act"). The Notes are subject to, and
qualified by, all such terms, certain of which are summarized herein, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms (all capitalized terms not defined herein shall have the
meanings assigned them in the Indenture). The Notes are unsecured general
obligations of the Company limited to $110,000,000 in aggregate principal
amount.
5. REDEMPTION PROVISIONS. The Notes are not redeemable at the
Company's option prior to , 2001. On and after such date, the Notes will be
subject to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of the principal amount of the
Notes) set forth below, plus accrued and unpaid interest to the date of
redemption, if redeemed during the twelve-month period beginning on [ ] of
the years indicated below:
Year Percentage
2001................................ %
2002................................ %
2003................................ %
2004 and thereafter................. 100%
Notwithstanding the foregoing, at any time prior to , 1999,
the Company, at its option, may redeem from time to time up to [ ]% of the
aggregate principal amount of the Notes originally issued with the net cash
proceeds of one or more Equity Offerings, other than the Concurrent Offering, at
a redemption price equal to [ ]% of the principal amount thereof, together with
accrued and unpaid interest to the date of redemption; provided, however, that
at least $75 million in aggregate principal amount of the Notes remains
outstanding immediately after any such redemption.
6. MANDATORY OFFERS.
(a) Within 30 days after any Change of Control, 10 Business Days
following any Asset Sale Trigger Date, or on the Special Offer Notice Date, as
the case may be, the Company shall mail a notice to each Holder stating a number
of items as set forth in Sections 4.11 (with respect to Change of Control
Offers) or 4.12 (with respect to a Special Offer) or 4.13 (with respect to Asset
Sale Offers) of the Indenture.
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(b) Holders may tender all or, subject to Section 8 below, any
portion of their Notes in an Offer by completing the form below entitled "OPTION
OF HOLDER TO ELECT PURCHASE."
(c) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Notes or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Notes, (ii) with respect to any tendered Note not accepted for payment in
whole or in part, the Trustee shall return such Note to the Holder thereof, and
(iii) with respect to any Note accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Note equal in principal amount
to the unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer to
Holders on or as soon as practicable after the applicable purchase date, and
(ii) comply with the applicable tender offer rules, including the requirements
of Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and all
other applicable securities laws and regulations in connection with any Offer.
7. NOTICE OF REDEMPTION. At least 30 days but not more than 60 days
before any redemption date, the Company shall mail by first class mail a notice
of redemption to each Holder of Notes or portions thereof that are to be
redeemed.
8. NOTES TO BE REDEEMED OR PURCHASED. The Notes may be redeemed or
purchased in part, but only in whole multiples of $1,000 unless all Notes held
by a Holder are to be redeemed or purchased. On and after any date on which
Notes are redeemed or purchased, interest ceases to accrue on the Notes or
portions thereof called for redemption or accepted for purchase on such date.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
Neither the Company nor the Registrar shall be required to issue,
register the transfer of or exchange any Note (i) during a period beginning at
the opening of business 15 days before the day of the mailing of notice of any
redemption from the Company and ending at the close of business on the day the
notice of redemption is sent to Holders, (ii) selected for redemption, in whole
or in part, except the unredeemed
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portion of any Note being redeemed in part may be transferred or exchanged, and
(iii) during any Change of Control Offer or Special Offer or Asset Sale Offer if
such Note is tendered pursuant to such Change of Control Offer or Special Offer
or Asset Sale Offer and not withdrawn.
10. PERSONS DEEMED OWNERS. The registered holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS.
(a) Subject to certain exceptions, the Indenture and the Notes may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes, and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in principal amount of the then outstanding Notes.
(b) Notwithstanding Section 11(a) above, the Company and the
Trustee may amend or supplement the Indenture or the Notes without the consent
of any Holder to: cure any ambiguity, defect or inconsistency; provide for
uncertificated Notes in addition to or in place of certificated Notes; provide
for the assumption of the Company's obligations to the Holders in the event of
any Disposition involving the Company that is permitted under Article V and in
which the Company is not the Surviving Person; make any change that would
provide any additional rights or benefits to Holders or not adversely affect the
interests of any Holder; comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or provide for additional Subsidiary Guarantors.
(c) Certain provisions of the Indenture cannot be amended,
supplemented or waived without the consent of each Holder of Notes affected.
12. DEFAULTS AND REMEDIES. Events of Default include: default for 30
days in the payment when due of interest on the Notes; default in the payment
when due of principal on the Notes; failure to perform or comply with certain
covenants, agreements or warranties in the Indenture which failure continues for
30 days after receipt of notice from the Trustee or Holders of at least 25% of
the outstanding Notes; defaults under and acceleration prior to maturity, or
failure to pay at maturity, of certain other Indebtedness; except as permitted
under the Indenture, any Subsidiary Guarantee shall cease for any reason to be
in full force and effect; certain judgments that remain undischarged for a
period of 60 days after their entry; dispositions by holders of certain
Indebtedness following a default under such Indebtedness of assets of the
Company or any Subsidiary
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pledged to secure such Indebtedness and certain events of bankruptcy or
insolvency involving the Company or any Subsidiary. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Notes may declare all outstanding Notes to be due and
payable immediately in an amount equal to the principal amount of and premium
on, if any, such Notes, plus any accrued and unpaid interest; provided, however,
that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency involving the Company or any Subsidiary Guarantor, the
principal amount of and premium on, if any, and any accrued and unpaid interest
on, the Notes becomes due and payable immediately without further action or
notice. Subject to certain exceptions, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it by the Indenture; provided that
the Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability. The
Trustee may withhold from Holders notice of any continuing default (except a
payment Default) if it determines that such withholding is in their interests.
13. SUBSIDIARY GUARANTEES. Payment of principal, premium, if any,
and interest (including interest on overdue principal and overdue interest, to
the extent lawful) on the Notes and all other Obligations of the Company to the
Holders or the Trustee under the Indenture and the Notes is, jointly and
severally, unconditionally guaranteed by each of the Subsidiary Guarantors
pursuant to and subject to the terms of Article X of the Indenture.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligation of the Company under the Indenture or the Notes. Each Holder by
accepting a Note waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the issuance of the
Notes.
16. SUCCESSOR SUBSTITUTED. Upon the merger, consolidation or other
business combination involving the Company or one or more Subsidiary Guarantors
of the Company, or upon the sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the Company's or a Subsidiary
Guarantor's properties and assets, the Surviving Person (if other than the
Company or a Subsidiary Guarantor, as the case may
95
-6-
be) resulting from such disposition shall assume all of the obligations of the
Company or the Subsidiary Guarantor under the Notes or the Subsidiary Guarantee,
as applicable, and the Indenture and shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the Subsidiary
Guarantor under the Indenture with the same effect as if such Surviving Person
had been named as the Company or a Subsidiary Guarantor in the Indenture.
17. GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
18. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
19. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the 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).
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the securities.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture, which has in it the text of this Note in
larger type. Request may be made to: PhoneTel Technologies, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secretary.
96
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
________________________________________________________________________________
Please insert social security or other identifying number of assignee
________________________________________________________________________________
Please print or typewrite name and address including
zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________ to transfer said Note on the books of
the Company.
The Agent may substitute another to act for him.
Date: ______________ Your Signature: _____________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee*: _______________________________
--------
* The Holder's signature must be guaranteed by an eligible guarantor that
is a member of one of the following recognized signature guarantee
programs: (A) The SECURITIES TRANSFER AGENTS MEDALLION PROGRAM; (B) The
NEW YORK STOCK EXCHANGE MEDALLION SIGNATURE PROGRAM; or (C) The STOCK
EXCHANGES MEDALLION PROGRAM.
97
EXHIBIT A-1
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Subsidiary Guarantor, jointly and severally,
unconditionally guarantees, to the extent set forth in the Indenture and subject
to the provisions of the Indenture that: (i) the principal of, premium, if any,
and interest on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, to the extent lawful, and all
other Obligations of the Company to the Holders or the Trustee under the
Indenture and the Notes will be promptly paid in full, all in accordance with
the terms of the Indenture and the Notes; and (ii) in case of any extension of
time of payment or renewal of any Notes or any of such other Obligations, that
the Notes will be promptly paid in full when due in accordance with the terms of
such extension or renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor to the Holders of
Notes and the Trustee pursuant to this guarantee and the Indenture are set forth
in Article X of the Indenture, to which reference is hereby made.
Subsidiary Guarantors:
PUBLIC TELEPHONE CORPORATION
WORLD COMMUNICATIONS, INC.
PARAMOUNT COMMUNICATIONS SYSTEMS
INC.
NORTHERN FLORIDA TELEPHONE
CORPORATION
PAYPHONES OF AMERICA, INC.
PHONETEL CCI, INC.
For each of the above:
By: _________________________________
Name:
Title:
98
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.11 of the Indenture, check the box: / /
If you elect to have this Note purchased by the Company
pursuant to Section 4.12 of the Indenture, check the box: / /
If you elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box: / /
If you elect to have only part of this Note purchased by the
Company pursuant to Section 4.11 or 4.12 or 4.13 of the Indenture, state the
amount (multiples of $1,000 only):
$_________________
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 an eligible guarantor that
is a member of one of the following recognized signature guarantee
programs: (A) The SECURITIES TRANSFER AGENTS MEDALLION PROGRAM; (B) The
NEW YORK STOCK EXCHANGE MEDALLION SIGNATURE PROGRAM; or (C) The STOCK
EXCHANGES MEDALLION PROGRAM.
99
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY NOTES
Any Global Note authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
100
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Notes for Physical
Note have been made:
Amount of increase Principal Amount of Signature of
Amount of decrease in Principal this Global Note authorized officer
Date of in Principal Amount Amount of this following such of Trustee or Note
Exchange of this Global Note Global Note decrease (or increase) Custodian
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