EXHIBIT 4.15
EXECUTION COPY
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▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.
$325,000,000 of
9 7/8% SECOND PRIORITY SENIOR SECURED NOTES DUE 2012
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INDENTURE
Dated as of November 8, 2004
--------------------------------
BNY MIDWEST TRUST COMPANY
as Trustee
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TABLE OF CONTENTS
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS................................................................................. 1
SECTION 1.02. OTHER DEFINITIONS.......................................................................... 36
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......................................... 36
SECTION 1.04. RULES OF CONSTRUCTION...................................................................... 37
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING............................................................................ 37
SECTION 2.02. EXECUTION AND AUTHENTICATION............................................................... 39
SECTION 2.03. REGISTRAR AND PAYING AGENT................................................................. 39
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST........................................................ 40
SECTION 2.05. HOLDER LISTS............................................................................... 40
SECTION 2.06. TRANSFER AND EXCHANGE...................................................................... 40
SECTION 2.07. REPLACEMENT NOTES.......................................................................... 54
SECTION 2.08. OUTSTANDING NOTES.......................................................................... 54
SECTION 2.09. TREASURY NOTES............................................................................. 55
SECTION 2.10. TEMPORARY NOTES............................................................................ 55
SECTION 2.11. CANCELLATION............................................................................... 55
SECTION 2.12. DEFAULTED INTEREST......................................................................... 56
SECTION 2.13. CUSIP AND ISIN NUMBERS..................................................................... 56
SECTION 2.14. ADDITIONAL INTEREST........................................................................ 56
SECTION 2.15. COMPUTATION OF INTEREST.................................................................... 57
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE......................................................................... 57
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.......................................................... 57
SECTION 3.03. NOTICE OF REDEMPTION....................................................................... 57
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION............................................................. 58
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE................................................................ 59
SECTION 3.06. NOTES REDEEMED IN PART..................................................................... 59
SECTION 3.07. OPTIONAL REDEMPTION........................................................................ 59
SECTION 3.08. MANDATORY REDEMPTION....................................................................... 60
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES........................................................................... 60
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY............................................................ 60
SECTION 4.03. REPORTS.................................................................................... 61
SECTION 4.04. COMPLIANCE CERTIFICATE..................................................................... 61
SECTION 4.05. TAXES...................................................................................... 62
SECTION 4.06. STAY, EXTENSION AND USURY LAWS............................................................. 62
SECTION 4.07. RESTRICTED PAYMENTS........................................................................ 62
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.................. 69
SECTION 4.09. INCURRENCE OF INDEBTEDNESS................................................................. 71
SECTION 4.10. ISSUANCE OF GUARANTEES BY RESTRICTED SUBSIDIARIES.......................................... 74
SECTION 4.11. ASSET SALES................................................................................ 75
SECTION 4.12. TRANSACTIONS WITH AFFILIATES............................................................... 79
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SECTION 4.13. LIENS...................................................................................... 81
SECTION 4.14. CORPORATE EXISTENCE........................................................................ 81
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL TRIGGERING EVENT................................ 81
SECTION 4.16. LIMITATIONS ON LINE OF BUSINESS............................................................ 84
SECTION 4.17. PAYMENTS FOR CONSENT....................................................................... 84
SECTION 4.18. ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.............................. 84
SECTION 4.19. SALE AND LEASEBACK TRANSACTIONS............................................................ 85
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS................................................... 85
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED............................................................... 86
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.......................................................................... 87
SECTION 6.02. ACCELERATION............................................................................... 89
SECTION 6.03. OTHER REMEDIES............................................................................. 90
SECTION 6.04. WAIVER OF PAST DEFAULTS.................................................................... 90
SECTION 6.05. CONTROL BY MAJORITY........................................................................ 90
SECTION 6.06. LIMITATION ON SUITS........................................................................ 90
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT....................................................... 91
SECTION 6.08. COLLECTION SUIT BY TRUSTEE................................................................. 91
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM........................................................... 91
SECTION 6.10. PRIORITIES................................................................................. 92
SECTION 6.11. UNDERTAKING FOR COSTS...................................................................... 92
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SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES......................................................... 93
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE............................................................. 93
SECTION 6.14. DELAY OR OMISSION NOT WAIVER............................................................... 93
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.......................................................................... 93
SECTION 7.02. RIGHTS OF TRUSTEE.......................................................................... 94
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE............................................................... 96
SECTION 7.04. TRUSTEE'S DISCLAIMER....................................................................... 96
SECTION 7.05. NOTICE OF DEFAULTS......................................................................... 96
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.............................................................. 96
SECTION 7.07. COMPENSATION AND INDEMNITY................................................................. 97
SECTION 7.08. REPLACEMENT OF TRUSTEE..................................................................... 98
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC........................................................... 99
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.............................................................. 99
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......................................... 99
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE................................... 99
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE............................................................ 100
SECTION 8.03. COVENANT DEFEASANCE....................................................................... 100
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE................................................ 101
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS............................................................ 102
SECTION 8.06. REPAYMENT TO COMPANY...................................................................... 102
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SECTION 8.07. REINSTATEMENT............................................................................. 103
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS................................................................ 103
SECTION 9.02. WITH CONSENT OF HOLDERS................................................................... 104
SECTION 9.03. COMPLIANCE WITH TRUST
INDENTURE ACT....................................................... 106
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS......................................................... 106
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.......................................................... 106
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC........................................................... 106
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF
INDENTURE................................................... 107
SECTION 10.02. APPLICATION OF TRUST MONEY................................................................ 108
ARTICLE 11.
GUARANTEE
SECTION 11.01. GUARANTEE................................................................................. 108
SECTION 11.02. LIMITATION ON GUARANTOR LIABILITY......................................................... 109
SECTION 11.03. EXECUTION AND DELIVERY OF THE NOTE GUARANTEES............................................. 110
SECTION 11.04. RELEASE OF SUBSIDIARY GUARANTOR........................................................... 110
ARTICLE 12.
COLLATERAL AND SECURITY
SECTION 12.01. COLLATERAL DOCUMENTS...................................................................... 111
SECTION 12.02. APPLICATION OF PROCEEDS OF COLLATERAL..................................................... 111
SECTION 12.03. POSSESSION, USE AND RELEASE OF COLLATERAL................................................. 111
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SECTION 12.04. ADDITIONAL COLLATERAL; ACQUISITION OF ASSETS OR PROPERTY.................................. 111
SECTION 12.05. TRUST
INDENTURE ACT REQUIREMENTS.......................................................... 112
SECTION 12.06. SUITS TO PROTECT THE COLLATERAL........................................................... 113
SECTION 12.07. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE................................................. 113
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST
INDENTURE ACT CONTROLS.............................................................. 114
SECTION 13.02. NOTICES................................................................................... 114
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS............................................... 115
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........................................ 115
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............................................. 116
SECTION 13.06. RULES BY TRUSTEE AND AGENTS............................................................... 116
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.................. 116
SECTION 13.08. GOVERNING LAW; WAIVER OF JURY TRIAL....................................................... 117
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............................................. 117
SECTION 13.10. SUCCESSORS................................................................................ 117
SECTION 13.11. SEVERABILITY.............................................................................. 117
SECTION 13.12. COUNTERPART ORIGINALS..................................................................... 117
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.......................................................... 117
SECTION 13.14. FORCE MAJEURE............................................................................. 117
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
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Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
SCHEDULES
Schedule I DEFINED TERMS AS SET FORTH IN ▇▇▇▇▇▇ CREDIT AGREEMENT
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INDENTURE dated as of November 8, 2004 among ▇▇▇▇▇▇ Cellular
Systems, Inc., an Oklahoma corporation (the "Company"), ▇▇▇▇▇▇ Communications
Corporation, an Oklahoma corporation (the "Parent Guarantor"), ▇▇▇▇▇▇ Operating
Co., LLC, an Oklahoma limited liability company and a subsidiary of the Parent
Guarantor and a Guarantor ("DOC"), the Initial Subsidiary Guarantors (as defined
herein) and BNY Midwest Trust Company, as trustee (the "Trustee").
The Company, the Parent Guarantor, DOC, the Initial Subsidiary
Guarantors and the Trustee agree as follows for the benefit of one another and
for the equal and ratable benefit of the Holders of the 9?% Second Priority
Senior Secured Notes due 2012 (the "2012 Notes"), and together with the Exchange
Notes (as defined below) and any Additional Notes (as defined below) that may be
issued in the future in accordance with Section 2.01(d) hereof, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Note" means a global note in substantially the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that shall be issued in a denomination equal
to the outstanding principal amount of Notes sold in reliance on Rule 144A.
"2011 Fixed Rate Notes" means the 8?% First Priority Fixed
Rate Senior Secured Notes due 2011 of the Company issued pursuant to an
indenture, dated the Issue Date, among the Company, the Parent Guarantor, DOC,
the Initial Subsidiary Guarantors and Bank of Oklahoma, National Association, as
trustee.
"2011 Floating Rate Notes" means First Priority Floating Rate
Senior Secured Floating Rate Notes due 2011 of the Company issued pursuant to an
indenture, dated the Issue Date, among the Company, the Parent Guarantor, DOC,
the Initial Subsidiary Guarantors and Bank of Oklahoma, National Association, as
trustee.
"2011 Notes" means, collectively, the 2011 Fixed Rate Notes
and the 2011 Floating Rate Notes.
"2011 Notes Collateral Trustee" means Bank of Oklahoma,
National Association, as trustee under the
indenture governing the 2011 Notes,
acting in its capacity as collateral trustee under the Security Documents,
together with its successors in such capacity.
"2011 Note Obligations" means Note Obligations in respect of
the 2011 Notes.
"2012 Note Obligations" means Note Obligations in respect of
the 2012 Notes.
"Accounts" shall have the same meaning as such term is
ascribed in the
New York UCC.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or merges with
or into the Company or which is assumed in connection with an Asset Acquisition
by a Restricted Subsidiary and not incurred in connection with, or in
anticipation of, such Person becoming a Restricted Subsidiary or such Asset
Acquisition. The term "Acquired Indebtedness" does not include Indebtedness of a
Person which is redeemed, defeased, retired or otherwise repaid at the time of
or immediately upon consummation of the transactions by which such Person
becomes a Restricted Subsidiary or such Asset Acquisition.
"Additional Interest" has the meaning set forth in the
Registration Rights Agreement.
"Additional Notes" means any additional Notes that the Company
may issue pursuant to Section 2.01 of this Indenture.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate consolidated net income (or loss) of the Company and its Restricted
Subsidiaries for such period determined in conformity with GAAP; provided that
the following items shall be excluded in computing Adjusted Consolidated Net
Income, without duplication:
(1) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person other than
the Company or any of its Restricted Subsidiaries has a joint interest
and the net income of any Unrestricted Subsidiary, except to the extent
of the amount of dividends or other distributions actually paid to the
Company or any of its Restricted Subsidiaries by such other Person or
such Unrestricted Subsidiary during such period;
(2) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to Section 4.07(a) (and
in such case, except to the extent includable pursuant to clause (1)
above), the net income or loss of any Person accrued prior to the date
it becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are
acquired by the Company or any of its Restricted Subsidiaries;
(3) except in the case of any restriction or encumbrance
permitted under Section 4.08, the net income of any Restricted
Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of such net
income is not at the time permitted by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary;
(4) any gains or losses on an after-tax basis attributable to
Asset Dispositions; and
(5) all extraordinary gains and extraordinary losses, net of
tax.
2
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Applicable Pari Passu Indebtedness" means:
(1) with respect to any asset that is the subject of an Asset
Sale at a time when such asset is included in the Collateral, Pari
Passu Indebtedness secured on the same priority by all or any part of
the Collateral; and
(2) with respect to any other asset, Pari Passu Indebtedness
that is required to be repaid (or that under the terms thereof is
required to be offered to be repaid) upon a sale of such asset.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to a Note, at any
redemption date, the greater of (i) 1.0% of the principal amount of such Note
and (ii) the excess of (A) the present value at such time of (1) the redemption
price of such Note at November 1, 2008 plus (2) all required interest payments
due on such Note through November 1, 2008, computed using a discount rate equal
to the Treasury Rate plus 50 basis points, over (B) the principal amount of such
Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Acquisition" means:
(1) an Investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries but only if such
Person's primary business is related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the date
of such Investment; or
(2) an acquisition by the Company or any of its Restricted
Subsidiaries of the property and assets of any Person other than the
Company or any of its Restricted Subsidiaries that constitute all or
substantially all of a division, operating unit or line of business of
such Person but only if the property and assets acquired are related,
ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such acquisition.
3
"Asset Disposition" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries other than to the Company or
another Restricted Subsidiary of:
(1) all or substantially all of the Capital Stock of any
Restricted Subsidiary; or
(2) all or substantially all of the assets that constitute a
division, operating unit or line of business of the Company or any of
its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of:
(1) all or any of the Capital Stock of any Restricted
Subsidiary;
(2) all or substantially all of the property and assets of a
division, operating unit or line of business of the Company or any of
its Restricted Subsidiaries; or
(3) any other property and assets of the Company or any of its
Restricted Subsidiaries outside the ordinary course of business of the
Company or such Restricted Subsidiary and, in each case, that is not
governed by Section 5.01.
The term "Asset Sale" shall not include:
(1) any (a) single transaction or (b) series of related
transactions that involves assets having a Fair Market Value of less
than $10.0 million, provided that the aggregate Fair Market Value of
assets involved in all transactions consummated from and after the
Issue Date under clause (a) or (b) does not exceed $50.0 million;
(2) sales, transfers or other dispositions of assets,
including Capital Stock of Restricted Subsidiaries, for consideration
at least equal to the Fair Market Value of the assets sold or disposed
of, but only if the consideration received consists of Capital Stock of
a Person that becomes a Restricted Subsidiary engaged in, or property
or assets (other than cash, except to the extent used as a bona fide
means of equalizing the value of the property or assets involved in the
swap transaction) of a nature or type or that are used in, a Permitted
Business on the date of such sale or other disposition (including but
not limited to, territory or market swaps with other Persons engaging
in a Permitted Business);
(3) sales, transfers or other dispositions of assets
constituting a Permitted Investment or Restricted Payment permitted to
be made under Section 4.07;
(4) sales, transfers or other dispositions of assets,
including issuances of Capital Stock, between or among the Company
and/or its Restricted Subsidiaries; or
(5) the sale or other disposition (including sale and
leaseback transactions) of Existing Tower Assets.
4
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value, discounted
at the rate of interest implicit in the transaction, determined in accordance
with GAAP, of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction,
including any period for which the lease has been extended or may, at the option
of the lessor, be extended.
"Authorizations" means:
(1) all material filings, recordings, and registrations with,
and all material validations or exemptions, approvals, orders,
authorizations, consents, franchises, licenses, certificates, and
permits from, any Governmental Authority (other than the FCC and
applicable PUCs), including without limitation, any of the foregoing
authorizing or permitting the acquisition, construction, or operation
of any System; and
(2) all material filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations,
consents, franchises, licenses, certificates, and permits from, the FCC
and any applicable PUCs, including, without limitation, any of the
foregoing authorizing or permitting the acquisition, construction, or
operation of any System.
"Average Life" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing
(1) the sum of the products of
(a) the number of years from such date of
determination to the dates of each successive scheduled
principal payment of such debt security and
(b) the amount of such principal payment by
(2) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors of
the corporation;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
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"Board Resolution" means a copy of a resolution, certified by
the Secretary or Assistant Secretary to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Broker Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, including, without
limitation, all Common Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present
value of the rental obligations under a Capitalized Lease.
"Cash Equivalents" means any of the following:
(1) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally guaranteed by
the United States of America or any agency thereof, having maturities
of not more than one year from the date of acquisition, unless such
obligations are deposited to defease any Indebtedness;
(2) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the
laws of the United States of America, any state thereof or any foreign
country recognized by the United States, and which bank or trust
company has capital, surplus and undivided profits aggregating in
excess of $50.0 million or the foreign currency equivalent thereof and
has outstanding debt which is rated "A" or such similar equivalent
rating or higher by at least one nationally recognized statistical
rating organization as defined in Rule 436 under the Securities Act or
any money-market fund sponsored by a registered broker-dealer or mutual
fund distributor;
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
(4) commercial paper, maturing not more than 90 days after the
date of acquisition, issued by a corporation other than an Affiliate of
the Company organized and in existence under the laws of the United
States of America, any state thereof or any foreign country recognized
by the United States of America with a rating at the time as of which
any investment therein is made of "P-1" or higher according to ▇▇▇▇▇'▇
or "A-1" or higher according to S&P; and
6
(5) securities with maturities of six months or less from the
date of acquisition issued or fully and unconditionally guaranteed by
any state, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and rated
at least "A" or such similar equivalent or higher rating by S&P or
▇▇▇▇▇'▇.
"Cellular Partnership" means any entity in which the Company
or any of its Restricted Subsidiaries owns, directly or indirectly, a
partnership interest.
"Cellular System" means a public mobile services, cellular
radio telephone service telecommunications system licensed under Part 22 of the
rules promulgated by the FCC.
"Change of Control" means:
(1) any "person" or "group", within the meaning of Section
13(d) or 14(d)(2) of the Exchange Act, other than the Permitted
Holders, becomes the ultimate "beneficial owner", as defined in Rule
13d-3 under the Exchange Act, of more than 50% of the total voting
power of the Voting Stock of the Company, the Parent Guarantor or DOC
on a fully diluted basis;
(2) individuals who on the Issue Date constituted the Board of
Directors of the Company, the Parent Guarantor or DOC, as the case may
be, together with any new directors whose election by the Board of
Directors or whose nomination for election by the Company's, the Parent
Guarantor's or DOC's stockholders was approved by a vote of at least a
majority of the members of the Board of Directors then in office who
either were members of the Board of Directors of the Company, the
Parent Guarantor or DOC, as the case may be, on the Issue Date or whose
election or nomination for election was previously so approved, cease
for any reason to constitute a majority of the members of the Board of
Directors of the Company, the Parent Guarantor or DOC, as the case may
be, then in office, provided that the election of up to two individuals
(or their replacements from time to time) nominated by each of the
majority of the holders of the Parent Guarantor's Series F preferred
stock, 12.25% senior preferred stock or 13% senior preferred stock to
the Board of Directors of the Parent Guarantor pursuant to the terms of
the relevant certificate of designation existing on the Issue Date
shall not, by itself, be deemed to be a Change of Control so long as
such election or replacement by such holders does not result in a
"change of control" under any Indebtedness (with a principal aggregate
amount outstanding of $10.0 million or more) of the Parent Guarantor,
DOC, the Company or its Restricted Subsidiaries;
(3) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all the combined assets
of the Company and its Restricted Subsidiaries, taken as a whole, to
any Person other than a Wholly Owned Restricted Subsidiary or the
Controlling Stockholder or any Affiliate thereof;
(4) the adoption of a plan of liquidation or dissolution of
the Company, the Parent Guarantor or DOC; or
7
(5) the Parent Guarantor ceases to be the "beneficial owner",
as defined in Rule 13d-3 under the Exchange Act, of all the outstanding
Common Stock of the Company or DOC, other than as a result of the
consolidation, merger of DOC with the Parent Guarantor or the Company
pursuant to Section 5.01 hereof where the Parent Guarantor or the
Company, as the case may be, is the Successor Company.
"Change of Control Triggering Event" means the occurrence of
both a Change of Control and a Rating Decline with respect to the Notes.
"Chattel Paper" shall have the same meaning as such term is
ascribed in the
New York UCC.
"Clearstream" means Clearstream Banking, S.A., and any and all
successors thereto.
"Collateral" means all of the Capital Stock in DOC and the
Company and substantially all of the tangible and intangible personal property,
real property and fixtures of DOC, the Company and the Subsidiary Guarantors,
including the Capital Stock of the Company's indirect and direct Subsidiaries,
whether now owned or hereafter acquired, in which a Lien is granted or purported
to be granted to the Collateral Trustee pursuant to the Security Documents as
security for any Secured Obligations.
"Collateral Trustee" means BNY Midwest Trust Company, as
Trustee hereunder, acting in its capacity as collateral trustee under the
Security Documents, together with its successors in such capacity.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's equity, other than Preferred
Stock of such Person, whether now outstanding or issued after the Issue Date,
including without limitation, all series and classes of such Common Stock.
"Communications Act" means, collectively, the Federal
Communications Act of 1934, as amended from time to time, and the rules and
regulations in effect at any time thereunder.
"Consolidated EBITDA" means, for any period, Adjusted
Consolidated Net Income for such period plus, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income:
(1) Consolidated Interest Expense;
(2) income taxes, other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or
losses or sales of assets;
(3) depreciation expense;
8
(4) amortization expense; and
(5) all other non-cash items reducing Adjusted Consolidated
Net Income other than items that will require cash payments and for
which an accrual or reserve is, or is required by GAAP to be, made,
less all non-cash items increasing Adjusted Consolidated Net Income,
all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP;
provided that if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced to the extent not otherwise
reduced in accordance with GAAP by an amount equal to the amount of the Adjusted
Consolidated Net Income attributable to such Restricted Subsidiary multiplied by
the percentage ownership interest in the net income of such Restricted
Subsidiary not owned on the last day of such period by the Company or any of its
Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness including, without
limitation:
(1) amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment
obligation, calculated in accordance with the effective interest method
of accounting;
(2) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
and
(3) the net costs associated with Interest Rate Agreements,
and the interest expense in respect of Indebtedness that is Guaranteed or
secured by the Company or any of its Restricted Subsidiaries and all but the
principal component of rentals in respect of Capitalized Lease Obligations paid,
accrued or scheduled to be paid or to be accrued by the Company and its
Restricted Subsidiaries during such period; excluding, however, any amount of
such interest of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income
pursuant to clause (3) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Adjusted Consolidated Net Income pursuant to clause (3) of the
definition thereof).
"Consolidated Leverage Ratio" means, on any Transaction Date,
the ratio of:
(1) the aggregate amount of Indebtedness of the Company and
its Restricted Subsidiaries on a consolidated basis outstanding on such
Transaction Date, to
(2) the aggregate amount of Consolidated EBITDA of the Company
and its Restricted Subsidiaries for the then most recent four fiscal
quarters for which consolidated financial statements of the Company
have been filed with the Commission or provided to the Trustee (such
four fiscal quarter period being the "Four Quarter Period").
9
In determining the Consolidated Leverage Ratio, pro forma effect shall be given
to:
(1) any Indebtedness that is to be incurred or repaid on the
Transaction Date;
(2) Asset Dispositions and Asset Acquisitions (including
giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur during the period beginning on the first day of
the Four Quarter Period and ending on the Transaction Date (the
"Reference Period") as if they had occurred and such proceeds had been
applied on the first day of such Reference Period; and
(3) asset dispositions and asset acquisitions (including
giving pro forma effect to the application of proceeds of any Asset
Disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into the Company or
any Restricted Subsidiary during such Reference Period and that would
have constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of
such Reference Period.
To the extent that pro forma effect is 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,
operating unit or line of business of the Person, that is acquired or disposed
of for which financial information is available.
"Controlling Stockholder" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Copyrights" means:
(1) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, all registrations,
recordings and applications in the United States Copyright Office; and
(2) the right to obtain all renewals thereof.
"Copyright Licenses" means any written agreement naming the
Company or any Guarantor as licensor or licensee granting any right under any
Copyright, including, without limitation, the grant of rights to manufacture,
distribute, exploit and sell materials derived from any Copyright.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means one or more debt facilities or
commercial paper facilities (including the ▇▇▇▇▇▇ Credit Agreement) with banks
or other institutional lenders providing for revolving credit loans, term loans,
senior or subordinated note financings,
10
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case together with all other
agreements, instruments, and documents (including, without limitation, any
Guarantees and security documents) executed or delivered pursuant thereto or in
connection therewith, in each case as such agreement, other agreements,
instruments or documents may be amended, supplemented, extended, renewed,
replaced, refinanced or otherwise modified from time to time, including, without
limitation, any agreement increasing or decreasing the amount of, extending the
maturity of, refinancing or otherwise restructuring all or a portion of the
Indebtedness under such agreements or any successor agreements.
"Credit Agreement Agent" means, at any time, the Person
serving at such time as the "Agent", the "Administrative Agent" or the "Trustee"
under the Credit Agreement or any other representative of the Lenders then most
recently designated as such by the requisite percentage of such Lenders in a
written notice delivered to the Trustee and the Collateral Trustee.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Current Assets" means all present and future rights, title
and interests of DOC, the Company and the Subsidiary Guarantors in each of the
following:
(1) all Receivables;
(2) all Inventory;
(3) all General Intangibles to the extent evidencing
Receivables;
(4) all Documents, Instruments and Chattel Paper to the extent
evidencing any of the foregoing;
(5) all Deposit Accounts to the extent containing Proceeds of
Receivables or Inventory;
(6) all Supporting Obligations relating to any of the
foregoing;
(7) all books and records pertaining to any of the foregoing;
and
(8) to the extent not otherwise included, all Proceeds of
Receivables and Inventory (including, without limitation, any such
Proceeds constituting Investment Property (as defined in the
New York
UCC)).
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
11
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto, except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Deposit Account" has the same meaning as such term is
ascribed in the Uniform Commercial Code of any applicable jurisdiction and, in
any event, including, without limitation, any demand, time, savings, passbook or
like account maintained with a depositary institution.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is:
(1) required to be redeemed prior to the final Stated Maturity
of the Notes;
(2) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to the final Stated Maturity
of the Notes; or
(3) convertible into or exchangeable for Capital Stock
referred to in (1) or (2) above or Indebtedness having a scheduled
maturity prior to the final Stated Maturity of the Notes.
Any Capital Stock that would not constitute Disqualified Stock
but for provisions thereof giving holders thereof the right to require such
Person to repurchase or redeem such Capital Stock upon the occurrence of a
"change of control" occurring prior to the final Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Section 4.15 and such Capital
Stock specifically provides that the Company of such Capital Stock will not
repurchase or redeem any such Capital Stock pursuant to such provision prior to
the Company's repurchase of such Notes as are required to be repurchased
pursuant to Section 4.15.
"▇▇▇▇▇▇ Credit Agreement" means that certain Credit Agreement,
dated as of October 23, 2003 and amended by Amendment No. 1, dated as of March
19, 2004, and Amendment No. 2, dated as of May 7, 2004, among the Company as
borrower, the Parent Guarantor and DOC as guarantors, the several banks and
other financial institutions or entities from time to time party thereto as
"Lenders", ▇▇▇▇▇▇ Commercial Paper Inc., as administrative agent for the
Lenders, ▇▇▇▇▇▇ Brothers Inc. and Bear, ▇▇▇▇▇▇▇ & Co. Inc., as joint lead
arrangers and joint book runners, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. as
syndication agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as co-arranger and
documentation agent, as further amended on the Issue Date, as amended, modified,
renewed, restated, refinanced or replaced, in whole or in part, from time to
time.
12
"Documents" shall have the same meaning as such term is
ascribed in the
New York UCC.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary of the Company other than a Subsidiary that is:
(1) a "controlled foreign corporation" under Section 957 of
the Internal Revenue Code, or
(2) a Subsidiary of such controlled foreign corporation.
"Equipment" shall have the same meaning as such term is
ascribed in the
New York UCC.
"Equipment Lease and Switch Sharing Agreements" means the
three Equipment Lease Agreements and the two Switch Sharing Agreements between
▇▇▇▇▇▇ Operating Co., LLC and American Cellular Corporation, the two Equipment
Lease Agreements and one Switch Sharing Agreement between ▇▇▇▇▇▇ Cellular
Communications, Inc. and ▇▇▇▇▇▇ Operating Co., LLC, the one Equipment Lease
Agreement between ▇▇▇▇▇▇ Cellular Communications, Inc. and American Cellular
Corporation, the one Equipment Lease Agreement between ▇▇▇▇▇▇ Cellular
Communications, Inc. and the Company, and the one Switch Sharing Agreement
between the Company and American Cellular Corporation, all dated as of January
1, 2003, which provide for the leasing or sharing of certain telecommunications
equipment between the parties thereto, including any amendments or modifications
thereto; provided, however, that such amendments or modifications may not
adversely affect the Company and its Restricted Subsidiaries when compared with
the provisions in place immediately prior to the time of such amendment.
"Equity Interest" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock but excluding any debt security
that is convertible into or exchangeable for Capital Stock.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York,
Brussels office, as operator of the Euroclear System, and any and all successors
thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Exchange Debentures" means any subordinated debentures issued
in exchange for all or any portion of the Parent Preferred Stock pursuant to the
terms of such Parent Preferred Stock.
"Exchange Notes" means the Notes to be issued in the Exchange
Offer pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
13
"Excluded Assets" means:
(a) any Intangible Asset, in each case only to the extent that
the grant by the Company or the relevant Subsidiary Guarantor of a security
interest pursuant to the Security Documents in the Company's or such Subsidiary
Guarantor's right, title and interest in such Intangible Asset (i) is prohibited
by legally enforceable provisions of any contract, agreement, instrument or
indenture governing such Intangible Asset, (ii) would give any other party to
such contract, agreement, instrument or indenture a legally enforceable right to
terminate its obligations thereunder, (iii) is permitted only with the consent
of another party, if the requirement to obtain such consent is legally
enforceable and such consent has not been obtained or (iv) with respect to any
FCC License, is prohibited pursuant to the Communications Act or other
applicable rules and regulations of the FCC; provided that in any event any
Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument, indenture or Intangible Asset shall not be
Excluded Assets to the extent that any of the foregoing is (or if it contained a
provision limiting the transferability or pledge thereof would be) rendered
ineffective by Section 9-406 of the
New York UCC;
(b) any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock"; and
(c) any Existing Tower Assets.
Notwithstanding clauses (a), (b) and (c) above, if at any time such property or
asset ceases to be an Excluded Asset, then the right to receive, and any
interest in, all Proceeds of, or monies or other consideration received from or
attributable to the sale, transfer, assignment or other disposition of such
assets shall not constitute Excluded Assets.
"Existing Parent Indebtedness" means the 8.875% senior notes
due 2013 of the Parent Guarantor issued pursuant to an indenture dated September
26, 2003 between the Parent Guarantor and Bank of Oklahoma, National
Association, as trustee, and the 10.875% senior notes due 2010 of the Parent
Guarantor issued pursuant to an indenture dated June 22, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of
New York, as trustee, in each case,
outstanding on the Issue Date.
"Existing Preferred Stock" means each of the Parent
Guarantor's 13% Senior Exchangeable Preferred Stock due 2009, 12.25% Senior
Exchangeable Preferred Stock due 2008 and Series F Convertible Preferred Stock
due 2016 outstanding on the Issue Date.
"Existing Tower Assets" means any telecommunications towers
(including any equipment, real property interests and fixtures which are
appurtenant and integral to such towers) (i) owned by the Company or any of its
Restricted Subsidiaries on the Issue Date, (ii) acquired by the Company as part
of the acquisition of RFB Cellular, Inc. and its affiliates pursuant to a
purchase agreement dated September 22, 2004, as same may be amended, and (iii)
acquired by the Company or any of its Restricted Subsidiaries at any time prior
to the earlier of (x) one year after the Issue Date and (y) the date of the
first sale and leaseback transaction with respect to any Existing Tower Assets.
14
"Fair Market Value" means with respect to any asset or group
of assets (other than a marketable security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the Company or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal.
"FCC" means the Federal Communications Commission.
"FCC License" means each license issued by the FCC to the
Company or any Subsidiary Guarantor from time to time.
"First Lien Obligations" means:
(1) in respect of the Primary Collateral, (a) the Notes, the
Note Guarantees with respect to the Notes and the 2011 Note
Obligations, (b) any Obligations under the ▇▇▇▇▇▇ Credit Agreement and
(c) all other Indebtedness of the Company and its Subsidiaries
(including any Additional Notes) designated as "First Lien Obligations"
for purposes of the Intercreditor Agreement permitted to be incurred
pursuant to the provisions of Section 4.09 and the provisions of
Section 4.13; and
(2) in respect of the Other Collateral, all Indebtedness of
the Company and its Subsidiaries, including any Credit Agreement,
permitted to be incurred pursuant to the provisions of Section 4.09 and
the provisions of Section 4.13 that is designated as "First Lien
Obligations" for purposes of the Intercreditor Agreement.
"First Priority Liens" means a Lien granted pursuant to a
Security Document to the Collateral Trustee upon any property of the Company or
any Guarantor to secure First Lien Obligations.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction outside the United States of America.
"Foreign Subsidiary Voting Stock" means the voting Capital
Stock of any Foreign Subsidiary.
"Four Quarter Period" has the meaning as set forth in the
definition of "Consolidated Leverage Ratio" in this Section 1.01.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained or referred
to in this Indenture shall be computed in conformity with GAAP applied on a
consistent basis.
15
"General Intangibles" shall have the same meaning as such term
is ascribed in the
New York UCC, including without limitation, any contracts.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(c),
2.06(f) or 2.07 hereof.
"Goods" shall have the same meaning as such term is ascribed
in the
New York UCC.
"Governmental Authority" means (a) local, state, municipal, or
federal judicial, executive, or legislative instrumentality, (b) private
arbitration board or panel, or (c) central bank.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person:
(1) to purchase or pay, or advance or supply funds for the
purchase or payment of, such Indebtedness or other obligation of such
other Person, whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise; or
(2) entered into for purposes of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof, in
whole or in part.
The term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantors" means the Parent Guarantor, DOC, and each
Subsidiary Guarantor, and their successors under this Indenture, until such
Guarantor is released in accordance with the terms of this Indenture.
"Holder" means a Person in whose name a Note is registered in
the security register.
"IAI Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any, to the extent
required by the Applicable Procedures.
16
"incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, provided that any Indebtedness of a Person existing at the time it
becomes a Restricted Subsidiary will be deemed to be incurred by such Restricted
Subsidiary at the time it becomes a Restricted Subsidiary.
"Indebtedness" means, with respect to any Person at any date
of determination, without duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit)
securing obligations (other than obligations described in (1) or (2)
above or (5), (6), (7) or (8) below) entered into in the ordinary
course of business of such Person to the extent such letters of credit
are not drawn upon or, if drawn upon, to the extent such drawing is
reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement);
(4) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, which purchase price is
due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such
services, except Trade Payables;
(5) all obligations of such Person as lessee under Capitalized
Leases;
(6) all indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; but only to the extent of the lesser of:
(a) the Fair Market Value of such asset at such date
of determination; and
(b) the amount of such Indebtedness;
(7) all indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person;
(8) the maximum fixed redemption or repurchase price of
Disqualified Stock (or, in the case of any Restricted Subsidiary, of
Preferred Stock) of such Person; and
(9) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
17
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided:
(1) the amount outstanding at any time of any Indebtedness
issued with original issue discount is the face amount of such
Indebtedness less the unamortized portion of the original issue
discount of such Indebtedness at the time of its issuance as determined
in conformity with GAAP; and
(2) money borrowed at the time of the incurrence of any
Indebtedness in order to pre-fund the payment of interest on such
Indebtedness shall be deemed not to be "Indebtedness."
Indebtedness shall not include (x) Parent Subordinated
Indebtedness and (y) intercompany advances or receivables by or among the Parent
Guarantor and its Subsidiaries relating to operating receipts and disbursements
and incurred in the ordinary course of business consistent with past practices
and expected to be paid within 60 days.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with Article 9 hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchasers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇ Brothers Inc. and Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Initial Subsidiary Guarantor" means each direct and indirect
Wholly Owned Restricted Subsidiary existing on the Issue Date.
"Instrument" shall have the same meaning as such term is
ascribed in the New York UCC.
"Intangible Assets" means any contract, Authorization, General
Intangible, Copyright License, Patent License or Trademark License.
"Intellectual Property" means, collectively, all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans
made from time to time to the Company or any Subsidiary Guarantor by the Parent
Guarantor or any of its Subsidiaries (provided that intercompany advances and
expense allocations shall not be required to be evidenced by a promissory note).
18
"Intercreditor Agreement" means the Intercreditor Agreement to
be dated on or about the Issue Date among the Credit Agreement Agent, the
Collateral Trustee, Bank of Oklahoma, National Association, as collateral
trustee for the 2011 Notes, the Company and the Guarantors, as amended,
modified, restated, supplemented or replaced from time to time.
"Institutional Accredited Investor" means an "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, option or future contract or other
similar agreement or arrangement.
"Inventory" shall have the same meaning as such term is
ascribed in the New York UCC.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable on the balance sheet of the Company or its Restricted
Subsidiaries) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, bonds,
notes, debentures or other similar instruments issued by, such Person and shall
include:
(1) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary; and
(2) the Fair Market Value of the Capital Stock or any other
Investment held by the Company or any of its Restricted Subsidiaries,
of or in any Person that has ceased to be a Restricted Subsidiary other
than as a result of being designated as an Unrestricted Subsidiary,
including, without limitation, by reason of any transaction permitted
by Section 4.18(c) hereof.
For purposes of the definition of "Unrestricted Subsidiary"
and Section 4.07 hereof:
(1) "Investment" shall include the Fair Market Value of the
assets (net of liabilities (other than liabilities to the Company or
any of its Subsidiaries)) of any Restricted Subsidiary at the time that
such Restricted Subsidiary is designated an Unrestricted Subsidiary;
(2) the Fair Market Value of the assets (net of liabilities
(other than liabilities to the Company or any of its Subsidiaries)) of
any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary shall be considered a
reduction in outstanding Investments; and
19
(3) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 by Moody's and BBB- by S&P, provided that at such time neither Rating
Agency has publicly announced that the Notes are under consideration for
possible downgrade to a rating lower than Baa3 or BBB-, respectively.
"Investment Property" means, collectively (1) all "investment
property" as such term is defined in Section 9-102(a)(49) of the New York UCC
(other than any Foreign Subsidiary Voting Stock excluded from the definition of
"Pledged Stock") and (2) whether or not constituting "investment property" as so
defined, all Pledged Notes and all Pledged Stock.
"Issue Date" means the date on which the Notes are originally
issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"Lenders" means, at any time, the parties to any Credit
Agreement then holding (or committed to provide) loans, letters of credit, debt
securities or other extensions of credit that constitute (or when provided will
constitute) part of the First Lien Obligations, Second Lien Obligations or Third
Lien Obligations, as applicable.
"Letter of Credit Rights" shall have the same meaning as such
term is ascribed in the New York UCC.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders for use by such Holders in
connection with the Exchange Offer.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Liquidity" means the aggregate amount of all cash and Cash
Equivalents held by the Company or any Subsidiary Guarantor plus any borrowing
available to the Company or any Subsidiary Guarantor under any Credit Agreement;
provided that the Board of Directors of the Company has determined in good faith
that such borrowing will be available for at least six months from the date of
determination.
"Management Agreement" means the Management Agreement between
the Company and American Cellular Corporation, dated as of August 19, 2003, as
amended, so long as any such amendment is no less favorable (other than as a
direct result of any changes in
20
applicable regulation) to the Company or any of its Restricted Subsidiaries, as
the case may be, in any material respect than the original agreement as in
effect on the Issue Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Mortgages" means each of the mortgages and deeds of trust
made by the Company or any Guarantor in favor of, or for the benefit of, the
Collateral Trustee for the benefit of the Holders of the Notes, in form and
substance reasonably satisfactory to the Collateral Trustee, as the same may be
amended, supplemented or otherwise modified from time to time.
"Net Cash Proceeds" means:
(1) with respect to any Asset Sale or sale of any Existing
Tower Assets, the proceeds of such Asset Sale or such sale in the form
of cash or Cash Equivalents, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of cash or
Cash Equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) and
proceeds from the conversion of other property received when converted
to cash or Cash Equivalents, net of:
(a) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment
bankers) related to such Asset Sale or such sale;
(b) provisions for all taxes (whether or not such
taxes will actually be paid or are payable) as a result of
such Asset Sale or such sale without regard to the
consolidated results of operations of the Company and its
Restricted Subsidiaries, taken as a whole;
(c) payments made to repay Indebtedness or any other
obligation (owing to a Person other than the Company or any
Subsidiary of the Company) outstanding at the time of such
Asset Sale or such sale that either:
(i) is secured by a Lien on the property or
assets sold; or
(ii) is required to be paid as a result of
such sale; and
(d) appropriate amounts to be provided by the Company
or any Restricted Subsidiary as a reserve against any
liabilities associated with such Asset Sale or such sale,
including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale or
such sale, all as determined in conformity with GAAP; and
(2) with respect to any issuance or sale of Capital Stock or
the incurrence of any Indebtedness, the proceeds of such issuance or
sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations to the extent
21
corresponding to the principal, but not interest, component thereof
when received in the form of cash or Cash Equivalents (except to the
extent such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary of the Company) and proceeds from
the conversion of other property received when converted to cash or
Cash Equivalents, net of attorney's fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee of the obligations of the
Company under this Indenture and the Notes, or under the indenture relating to
the 2011 Notes and the 2011 Notes, as the case may be, by any Guarantor.
"Note Obligations" means the Notes, the Parent Guarantee, the
Subsidiary Guarantees and all other Obligations of any Obligor under this
Indenture, the Notes, the Exchange Notes, the Parent Guarantee, the Subsidiary
Guarantees and the Security Documents.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnities, reimbursement obligations, guarantee obligations, costs, expenses
(including fees and disbursements of counsel), damages and other liabilities and
obligations, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of
or in connection with the documentation governing or made, delivered or given in
connection with, any Indebtedness (including, without limitation, interest
accruing at the then applicable rate provided in such documentation after the
maturity of such Indebtedness and interest accruing at the then applicable rate
provided in such documentation after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Company or any Restricted Subsidiary, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding).
"Obligor" means a Person obligated as an issuer or guarantor
of the Notes.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, 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 on behalf
of the Company by two Officers, one of whom shall be the principal executive
officer, the principal accounting officer or principal financial officer of the
Company and delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal counsel. The
counsel may be an employee of or counsel to the Company, any Subsidiary of the
Company.
22
"Other Collateral" means the Current Assets.
"Parent Guarantee" means, collectively, the Note Guarantees
issued by each of the Parent Guarantor and ▇▇▇▇▇▇ Operating Co., LLC.
"Parent Preferred Stock" means, collectively, (a) the shares
of the Senior Exchangeable Preferred Stock (valued at $1,000 liquidation value)
issued by the Parent Guarantor which are mandatorily redeemable in 2008,
outstanding on the Issue Date, together with additional Preferred Stock issued
in lieu of dividends on the Preferred Stock described in this clause (a); (b)
the shares of Senior Exchangeable Preferred Stock (valued at $1,000 liquidation
value) issued by the Parent Guarantor which are mandatorily redeemable in 2009,
outstanding on the Issue Date, together with additional Preferred Stock issued
in lieu of dividends on the Preferred Stock described in this clause (b); and
(c) all renewals, extensions, amendments, modifications, and refinancings of the
Preferred Stock described in clauses (a) and (b) hereof, so long as (x) the
principal amount of any refinanced Preferred Stock shall not exceed the
principal amount of the Preferred Stock being refinanced immediately prior to
giving effect to any such refinancing; (y) the terms of the refinancing are no
less favorable to Holders of the Notes than the terms of the Preferred Stock
being refinanced; and (z) the maturity date of the refinancing is the same as or
later than the maturity date of the Preferred Stock being refinanced.
"Parent Subordinated Indebtedness" means (a) subordinated
indebtedness owed to the Parent Guarantor outstanding on the Issue Date and (b)
any other indebtedness of the Company owed to the Parent Guarantor that by its
terms or by the terms of any agreement or instrument pursuant to which such
indebtedness is incurred:
(1) is expressly made subordinate in right of payment to the
Notes;
(2) provides that no payment of principal or interest on, or
any other payment with respect to, such indebtedness may be made prior
to the 9lst day following payment in full of all of the Company's
obligations under the Notes; and
(3) provides that holders of such indebtedness cannot make
demands for payment or assert other claims, declare such indebtedness
to be due upon an event of default or otherwise exercise any remedy, in
each case prior to the 91st day following payment in full of all of the
Company's obligations under the Notes.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or any Guarantor that is not subordinated in right of payment to any
other Indebtedness of the Company or such Guarantor, as the case may be.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to the DTC, shall include Euroclear
and Clearstream.
"Participating Broker-Dealer" means any Broker-Dealer that
elects to exchange Notes acquired in the Exchange Offer for its own account as a
result of market-making or other trading activities.
23
"Patents" means:
(1) all letters patent of the United States, any other country
or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith;
(2) all applications for letters patent of the United States
or any other country and all divisions, continuations and
continuations-in-part thereof; and
(3) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License" means all agreements, whether written or
oral, providing for the grant by or to the Company or any Guarantor of any right
to manufacture, use or sell any invention covered in whole or in part by a
Patent.
"PCS Systems" means the wireless cellular telecommunication
systems offering "Personal Communication Services" authorized under Part 24 of
the FCC Rules (47 C.F.R. Sections 24.1 et seq.).
"Permitted Business" means:
(1) the delivery or distribution of telecommunications, voice,
data, internet or video services; and
(2) any business or activity reasonably related or ancillary
thereto, including, without limitation, any business conducted by the
Company or any Restricted Subsidiary on the Issue Date and the
acquisition, holding or exploitation or any license relating to the
delivery of the services described in clause (1) of this definition.
"Permitted Holders" means, collectively, descendants of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and any trusts or partnerships that are beneficially owned by
such descendants.
"Permitted Investment" means:
(1) an Investment in the Company or a Restricted Subsidiary or
a Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into, or
transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; but only if such Person's primary business
is related, ancillary or complementary to the businesses of the Company
and its Restricted Subsidiaries on the date of such Investment;
(2) Cash Equivalents;
(3) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP;
(4) stock, obligations or securities received in satisfaction
of judgments or pursuant to any court supervised plan of reorganization
or similar proceeding;
24
(5) non-cash consideration acquired in any Asset Sale effected
in accordance with Section 4.11; and
(6) any acquisition of assets used, or Capital Stock of a
Person primarily engaged, in a business related, ancillary or
complementary to the business of the Company and its Restricted
Subsidiaries to the extent acquired in exchange for Capital Stock
(other than Disqualified Stock) of the Company.
"Permitted Liens" means:
(1) Liens to secure Indebtedness of the Company or any
Subsidiary Guarantor in an aggregate principal amount outstanding at
any time not to exceed $125.0 million;
(2) Liens to secure Indebtedness permitted under Section
4.09(b)(ix), provided that such Lien is not a First Priority Lien with
respect to the Primary Collateral or Other Collateral, or Second
Priority Lien with respect to the Other Collateral, and is equal or
junior to the Second Lien Obligations with respect to the Primary
Collateral and the Third Lien Obligations with respect to the Other
Collateral;
(3) First Priority Liens, Second Priority Liens and Third
Priority Liens to secure Indebtedness permitted under Section
4.09(b)(vii);
(4) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any of the
Company's Restricted Subsidiaries; provided, however, that such Liens
were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or such Restricted
Subsidiary;
(5) Liens on property existing at the time of acquisition of
that property by the Company or any of the Restricted Subsidiaries of
the Company; provided, however, that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend
to any assets other than those of the Person merged into or
consolidated with the Company or its Restricted Subsidiary;
(6) Liens existing on the Issue Date, including Liens securing
obligations under the ▇▇▇▇▇▇ Credit Agreement;
(7) Liens in favor of the Company;
(8) any interest or title of a lessor in the property subject
to any Capitalized Lease;
(9) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds, deposits to secure the
performance of bids, trade contracts, government contracts, leases or
licenses or other obligations of a like nature incurred in the ordinary
course of business, including, without limitation, landlord Liens on
leased properties;
25
(10) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
prosecuted, provided that any reserve or other appropriate provision as
will be required to conform with GAAP will have been made for that
reserve or provision;
(11) carriers', warehousemen's, mechanics', landlords'
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations not overdue for a period
in excess of 60 days or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently prosecuted;
provided, however, that any reserve or other appropriate provision as
will be required to conform with GAAP will have been made for that
reserve or provision;
(12) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business, which
do not in any case materially detract from the value of the property
subject to the Lien or do not interfere with or adversely affect in any
material respect the ordinary conduct of the business of the Company
and the business of the Company's Restricted Subsidiaries taken as a
whole;
(13) Liens in favor of customs and revenue authorities to
secure payment of customs duties in connection with the importation of
goods in the ordinary course of business and other similar Liens
arising in the ordinary course of business;
(14) leases or subleases granted to third Persons not
interfering with the Company's ordinary course of business or of the
business of any of the Company's Restricted Subsidiaries;
(15) Liens, other than any Lien imposed by ERISA or any rule
or regulation promulgated under ERISA, incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance, and other types of social security;
(16) deposits made in the ordinary course of business to
secure liability to insurance carriers;
(17) any attachment or judgment Lien in respect of a judgment
not constituting an Event of Default under Section 6.01(f) hereof;
(18) any interest or title of a lessor or sublessor under any
operating lease, conditional sale, title retention, consignment or
similar arrangements entered into in the ordinary course of business;
(19) Liens under licensing agreements for use of intellectual
property entered into in the ordinary course of business;
(20) bankers' liens in respect of deposit accounts;
26
(21) Liens imposed by law incurred by the Company or its
Restricted Subsidiaries in the ordinary course of business; and
(22) Liens on assets directly related to a sale and leaseback
transaction to secure related Attributable Debt.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value or liquidation
preference, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value or liquidation
preference, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest or
dividends, if applicable, on the Indebtedness and the amount of all
expenses and premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final Stated
Maturity not earlier than the Stated Maturity of, and has an Average
Life equal to or greater than the Average Life of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a Stated
Maturity not earlier than the final Stated Maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by
the Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Pledged Notes" means all Intercompany Notes at any time
issued to the Company or any Guarantor and all other promissory notes issued to
or held by the Company or any Guarantor (other than promissory notes issued in
connection with extensions of trade credit by the Company or any Guarantor in
the ordinary course of business).
"Pledged Securities" means, collectively, the Pledged Notes
and the Pledged Stock.
"Pledged Stock" means:
27
(1) any shares, stock certificates, equity interests, options
or rights of any nature whatsoever in respect of the Capital Stock of
any Person (including pursuant to any operating agreement with respect
to any limited liability company) that may be issued or granted to, or
held by, the Company, DOC or any Subsidiary Guarantor, and Capital
Stock in DOC or the Company held by the Parent Guarantor from time to
time, provided that, to the extent that and for so long as adverse tax
consequences for the Parent Guarantor and its Subsidiaries organized
under the laws of any jurisdiction within the United States of America
would otherwise result from a pledge of all the Capital Stock of any
Foreign Subsidiary, not more than 65% of the total outstanding Foreign
Subsidiary Voting Stock of such Foreign Subsidiary shall be deemed
pledged under the Security Documents; and
(2) all right, title and interest of the Company or any
Subsidiary Guarantor as a limited or general partner in any Cellular
Partnership or any other partnership from time to time, together with
all right, title and interest of the Company or any Subsidiary
Guarantor in any partnership agreement with respect to any such
Cellular Partnership or other partnership (to the extent such right,
title or interest does not constitute an Excluded Asset).
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference equity,
whether now outstanding or issued after the Issue Date including all other
series and classes of such preferred stock or preference stock.
"Primary Collateral" means the Collateral, excluding the Other
Collateral.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Proceeds" shall have the same meaning as such term is
ascribed in the New York UCC and, in any event, including, without limitation,
all dividends or other income from the Investment Property, collections thereon
or distributions or payments with respect thereto.
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including Capital Stock.
"PUC" means any state regulatory agency or governmental
authority that exercises jurisdiction over the services provided via, or the
ownership, construction, or operation of, commercial mobile radio service
facilities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agency" means each of S&P and ▇▇▇▇▇'▇ or, if either of
S&P and ▇▇▇▇▇'▇ shall not make a rating on the Notes publicly available, a
nationally recognized statistical rating agency or agencies, as the case may be,
selected by the Company (as evidenced by a resolution of the Board of Directors
of the Company), which shall be substituted for any of S&P or ▇▇▇▇▇'▇, as the
case may be.
28
"Rating Date" means the date which is 90 days prior to the
earlier of:
(1) a Change of Control; and
(2) public notice of the occurrence of a Change of Control or
of the intention of the Company to effect a Change of Control.
"Rating Decline" means the occurrence of the following on, or
within 90 days after, the earlier of the date of public notice of the occurrence
of a Change of Control or of the intention of the Company to effect a Change of
Control (which period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by any of the
Rating Agencies):
(1) in the event the Notes are assigned an Investment Grade
Rating by both Rating Agencies on the Rating Date, the rating of the
Notes by one of the Rating Agencies shall be below an Investment Grade
Rating; or
(2) in the event the Notes are rated below an Investment Grade
Rating by at least one of the Rating Agencies on the Rating Date, the
rating of the Notes by at least one of the Rating Agencies shall be
decreased by one or more gradations (including gradations within rating
categories as well as between rating categories).
"Receivable" means any right to a monetary payment for goods
which have been sold, leased, licensed, assigned or otherwise disposed of, or
for services which have been rendered, whether or not such right is evidenced by
an Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Reference Period" has the meaning as set forth in the
definition of "Consolidation Leverage Ratio" in this Section 1.01.
"Registration Rights Agreement" means the Registration Rights
Agreement relating to the Notes and the 2011 Notes dated as of the Issue Date,
by and among the Company, the Parent Guarantor, DOC, the Subsidiary Guarantors
and the Initial Purchasers named therein, as such agreement may be amended,
modified or supplemented from time to time, and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes, or exchange
such Additional Notes for registered Notes, under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Global Note in
substantially the form of Exhibit A hereto bearing the Global Note Legend and
the Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on Rule 904 of
Regulation S.
29
"Replacement Assets" means:
(1) capital expenditures or other non-current assets of a
nature or type that are used in a Permitted Business; or
(2) substantially all the assets of a Permitted Business or a
majority of the Voting Power of any Person engaged in a Permitted
Business that will become on the date of acquisition thereof a
Restricted Subsidiary.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under Regulation S of
the Securities Act.
"Rule 904" means Rule 904 promulgated under Regulation S of
the Securities Act.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, and its successors.
"Second Lien Obligations" means:
(1) in respect of the Other Collateral, the 2011 Notes, the
Note Guarantees with respect to the 2011 Notes and the 2011 Note
Obligations and all other Indebtedness of the Company and its
Subsidiaries (including any additional 2011 Notes) designated as
"Second Lien Obligations" for purposes of the Intercreditor Agreement
permitted to be
30
incurred pursuant to the provisions of Section 4.09 and the provisions
of Section 4.13; and
(2) in respect of the Primary Collateral, the Notes, the Note
Guarantees with respect to the Notes and the 2012 Note Obligations and
all other Indebtedness of the Parent Guarantor and its Subsidiaries
(including any Additional Notes) designated as "Second Lien
Obligations" for purposes of the Intercreditor Agreement permitted to
be incurred pursuant to the provisions of Section 4.09 and the
provisions of Section 4.13.
"Second Priority Liens" means a Lien granted pursuant to a
Security Document to the Collateral Trustee or the 2012 Notes Collateral Trustee
upon any property of the Company or any Guarantor to secure Second Lien
Obligations.
"Secured Obligations" means, collectively, all First Lien
Obligations, all Second Lien Obligations and all Third Lien Obligations.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means:
(1) the 2011 Notes Security Agreement to be dated on or about
the Issue Date among DOC, the Company, the Parent Guarantor and certain
of the Company's Restricted Subsidiaries party thereto and the 2011
Notes Collateral Trustee, with respect to the Security Interests in
favor of the 2011 Notes Collateral Trustee, for the benefit of the
Holders of the 2011 Notes, in all or any portion of the Collateral, in
each case, as amended, modified, restated, supplemented or replaced
from time to time; and
(2) the 2012 Notes Security Agreement to be dated on or about
the Issue Date among DOC, the Company, the Parent Guarantor and certain
of the Company's Restricted Subsidiaries party thereto and the
Collateral Trustee, with respect to the Security Interests in favor of
the Collateral Trustee, for the benefit of the Holders of the Notes, in
all or any portion of the Collateral, in each case, as amended,
modified, restated, supplemented or replaced from time to time, as the
context suggests.
"Security Documents" means:
(1) in respect of the First Lien Obligations, the 2011 Notes
Security Agreement, the Intercreditor Agreement, and all other security
agreements, pledges, collateral assignments or other instruments
evidencing or creating First Priority Liens in all or any portion of
the Collateral for the benefit of the Holders of the Notes, in each
case, as amended, modified, restated, supplemented or replaced from
time to time;
(2) in respect of the Second Lien Obligations, the 2012 Notes
Security Agreement, the Intercreditor Agreement, and all other security
agreements, pledges, collateral assignments or other instruments
evidencing or creating Second Priority Liens in all or any portion of
the Collateral for the benefit of the Holders of the Notes, in each
case, as amended, modified, restated, supplemented or replaced from
time to time; and
31
(3) in respect of the Third Lien Obligations, the
Intercreditor Agreement, and all other security agreements, pledges,
collateral assignments or other instruments evidencing or creating
Third Priority Liens in all or any portion of the Collateral for the
benefit of the Holders of the Notes, in each case, as amended,
modified, restated, supplemented or replaced from time to time.
"Security Interests" means the Liens on the Collateral created
by the Security Documents in favor of the Collateral Trustee for the benefit of
the Trustee and the Holders of the Notes.
"Senior Preferred Stock" means each of the Parent Guarantor's
series of 13% Senior Exchangeable Preferred Stock due 2009 and 12.25% Senior
Exchangeable Preferred Stock due 2008 outstanding on the Issue Date.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination,
any Restricted Subsidiary that, together with its Subsidiaries that are
Restricted Subsidiaries:
(1) for the most recent fiscal year of the Company, accounted
for more than 10% of the consolidated revenues of the Company and its
Restricted Subsidiaries; or
(2) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of the Company and its Restricted
Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Stated Maturity" means:
(1) with respect to any Indebtedness, the date specified in
such Indebtedness as the fixed date on which the final installment of
principal of such Indebtedness is due and payable or the fixed date on
which such Indebtedness is mandatorily redeemable; and
(2) with respect to any scheduled installment of principal of
or interest or dividends, as applicable, on any Indebtedness, the date
specified in such Indebtedness as the fixed date on which such
installment is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
voting power of the outstanding Voting Stock is owned, directly or indirectly,
by such Person and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" means any Note Guarantee issued by a
Restricted Subsidiary.
32
"Subsidiary Guarantor" means any Restricted Subsidiary which
has provided a Note Guarantee on the Issue Date or has provided a Note Guarantee
pursuant to Section 4.10 of this Indenture, and its successors until released in
accordance with the terms of this Indenture.
"Supporting Obligations" shall have the same meaning as such
term is ascribed in the New York UCC.
"System" means each of the Cellular Systems and PCS Systems,
now or hereafter owned, operated, or managed by the Company or its Restricted
Subsidiaries.
"Tax Sharing Agreement" means the Consolidated Income Tax
Payment Agreement among the Parent Guarantor and its Subsidiaries, dated as of
February 28, 1997, as amended, so long as any such amendment is no less
favorable taken as a whole to the Company and its Subsidiaries in any material
respects than the original agreement as in effect on the Issue Date.
"Third Lien Obligations" means, in respect of the Other
Collateral, the Notes, the Note Guarantees with respect to the Notes and the
2012 Note Obligations and all other Indebtedness of the Company and its
Subsidiaries (including any Additional Notes) designated as "Third Lien
Obligations" for purposes of the Intercreditor Agreement permitted to be
incurred pursuant to the provisions of Section 4.09 hereof and the provisions of
Section 4.13 hereof.
"Third Priority Liens" means a Lien granted pursuant to a
Security Document to the Collateral Trustee upon any property of the Company or
any Guarantor to secure Third Lien Obligations.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03 hereof.
"Trade Payables" means accounts payable to vendors in the
ordinary course of business.
"Trademark License" means any agreement, whether written or
oral, providing for the grant by or to the Company or any Guarantor of any right
to use any Trademark.
"Trademarks" means (1) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto and (2) the right to obtain all renewals thereof.
"Transaction Date" means, with respect to the incurrence of
any Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
33
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519)) which has become publicly available at least two business days prior
to the redemption date or, if such Statistical Release is no longer published,
any publicly available source or similar market data most nearly equal to the
period from the redemption date to November 1, 2008, provided, however, that if
the period from the redemption date to November 1, 2008 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to November 1, 2008 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Triggering Event" means the occurrence of (a) any Event of
Default, or (b) (i) any Authorization necessary for the ownership or operations
by the Company or its Subsidiaries thereof shall expire, and on or prior to such
expiration, the same shall not have been renewed or replaced by another
Authorization authorizing substantially the same operations by the Company or
its Subsidiaries; (ii) any Authorization necessary for the ownership or
operations of the Company or its Subsidiaries thereof shall be canceled,
revoked, terminated, rescinded, annulled, suspended, or modified in a materially
adverse respect, or shall no longer be in full force and effect, or the grant or
the effectiveness thereof shall have been stayed, vacated, reversed, or set
aside; (iii) the Company or its Subsidiaries thereof is required by a
Governmental Authority to halt construction or operations under any
Authorization and such action shall continue uncorrected for thirty (30) days
after the applicable entity has received notice thereof; or (iv) if any
Governmental Authority shall make any other final non-appealable determination
the effect of which would be to affect materially and adversely the operations
by the Company or its Subsidiaries thereof as now conducted.
"Trustee" means the party named as such in the preamble above
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successors serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note in
substantially the form of Exhibit A hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that at any time of determination after the Issue Date shall be designated an
Unrestricted Subsidiary by the Company's Board of Directors in the manner
provided below and any Subsidiary of an Unrestricted Subsidiary. The Company's
Board of Directors may designate any Restricted Subsidiary including any newly
acquired or newly formed Subsidiary of the Company to be an
34
Unrestricted Subsidiary unless, immediately after such designation, such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any Restricted Subsidiary, on the condition that:
(1) any Guarantee by the Company or any Restricted Subsidiary
of any Indebtedness of the Subsidiary being so designated shall be
deemed an "incurrence" of such Indebtedness and an "Investment" by the
Company or such Restricted Subsidiary (or both, if applicable) at the
time of such designation;
(2) either the Subsidiary to be so designated has total assets
of $1,000 or less or, if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.07
described below; and
(3) if applicable, the incurrence of Indebtedness and the
Investment referred to in clause (1) of this proviso would be permitted
under Sections 4.07 and 4.09 hereof.
The Company's Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary, on the condition that
immediately after giving effect to such designation:
(1) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture; and
(2) no Default or Event of Default shall have occurred and be
continuing, or shall occur upon such redesignation.
Any such designation by the Company's Board of Directors shall
be evidenced to the Trustee by promptly providing the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Securities" means securities that are direct
obligations of, or obligations guaranteed by, the United States of America for
the payment of which its full faith and credit is pledged.
"U.S. Person" means a U.S. person as defined in Rule 902(o) of
Regulation S under the Securities Act.
"Voting Power" means with the aggregate number of votes of all
classes of Capital Stock of such Person which ordinarily have voting power for
the election of directors of such Person.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of such
Person.
35
"Wholly Owned" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Asset Sale Offer"........................................................... 4.11(b)(iii)
"Asset Sale Offer Amount".................................................... 4.11(e)(ii)(B)
"Asset Sale Offer Period".................................................... 4.11(e)(iii)
"Asset Sale Purchase Date"................................................... 4.11(e)(iii)
"Authentication Order"....................................................... 2.02
"Change of Control Offer".................................................... 4.15(a)
"Change of Control Offer Period"............................................. 4.15(b)(iii)
"Change of Control Payment".................................................. 4.15(a)
"Change of Control Purchase Date"............................................ 4.15(b)(iii)
"Covenant Defeasance"........................................................ 8.03
"Credit Agreement Restricted Payment Covenant"............................... 4.07(d)
"Daily Interest Amount"...................................................... 2.15(b)(i)
"DTC"........................................................................ 2.03(b)
"Event of Default"........................................................... 6.01
"Excess Proceeds"............................................................ 4.11(c)
"Guaranteed Indebtedness".................................................... 4.10(b)
"Legal Defeasance"........................................................... 8.02
"Paying Agent"............................................................... 2.03(a)
"Registrar".................................................................. 2.03(a)
"Restricted Payments"........................................................ 4.07(a)
"Subsidiary Guarantee"....................................................... 4.10(a)
"Successor Company".......................................................... 5.01(a)
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
36
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Note Guarantees means the
Company and the Guarantors, respectively, and any successor or assign
upon the Notes and the Note Guarantees, respectively.
(c) All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "including" means "including without limitation";
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the Commission from time to time.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof. The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any
37
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling. The Notes shall be dated the
date of their authentication.
(b) Form of Notes. Notes issued in global form shall be
substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
(d) Subject to compliance with the provisions of Section 4.09
of this Indenture, the Company may issue Additional Notes under this Indenture
which shall be secured with Second Priority Liens and Third Priority Liens.
(e) Certificated Securities. The Company shall exchange Global
Notes for Definitive Notes if: (1) at any time the Depositary notifies the
Company that it is unwilling or unable to continue to act as Depositary for the
Global Notes or if at any time the Depositary shall no longer be eligible to act
as such because it ceases to be a clearing agency registered under the Exchange
Act, and, in either case, the Company shall not have appointed a successor
Depositary within 120 days after the Company receives such notice or becomes
aware of such ineligibility, (2) the Company, at its option, determines that the
Global Notes shall be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (3) upon written request of a Holder or
the Trustee if a Default or Event of Default shall have occurred and be
continuing.
Upon the occurrence of any of the events set forth in clauses
(1), (2) or (3) above, the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver, Definitive Notes, in authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Notes in
exchange for such Global Notes.
Upon the exchange of a Global Note for Definitive Notes, such
Global Note shall be cancelled by the Trustee or an agent of the Company or the
Trustee. Definitive Notes issued in exchange for a Global Note pursuant to this
Section 2.01 shall be registered in such names and
38
in such authorized denominations as the Depositary, pursuant to instructions
from its Participants or its Applicable Procedures, shall instruct the Trustee
or an agent of the Company or the Trustee in writing. The Trustee or such agent
shall deliver such Definitive Notes to or as directed by the Persons in whose
names such Definitive Notes are so registered or to the Depositary.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal may be reproduced on the Notes and
may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the
manual signature of a Responsible Officer of the Trustee. The signature of a
Responsible Officer of the Trustee on the certificate of authentication on a
Note shall be conclusive evidence that the Note has been authenticated under
this Indenture.
(d) The Trustee shall, upon a written order of the Company
signed by an Officer (an "Authentication Order"), authenticate Notes for
original issue up to the aggregate principal amount stated in such notice.
(e) The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes. 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 Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional Paying Agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes. Whenever
this Indenture or any other document related hereto or thereto requires or
permits actions to be taken based on instructions or directions of Holders
evidencing a specified percentage of the aggregate principal amount of the Notes
then outstanding, the Depositary will be deemed to represent such percentage
only to the extent that it has received instructions or directions to that
effect from the Holders of the Notes and/or Indirect Participants or
Participants owning or representing, respectively, such
39
required percentage of the beneficial interest in the Notes, as shall be
conclusively evidenced by the Depositary's delivery of such instructions or
directions to the Trustee.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
(d) The Global Notes shall be initially registered in the name
of Cede & Co., nominee of DTC.
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 shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, and premium, Additional Interest, if any, or interest
on, the Notes, and shall notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary of the Company) shall have no further liability for the
money. If the Company or one of its Subsidiaries acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee, at
least seven Business Days or such shorter time as the Trustee may allow before
each interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders, including the aggregate
principal amount of Notes held by each Holder.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Upon the
occurrence of any of the events set forth in Section 2.01(e) above, Definitive
Notes shall be issued in denominations of $1,000 or integral multiples thereof
and in such names as the Depositary shall instruct the Trustee in writing.
Global Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Except as provided above, every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), and beneficial
40
interests in a Global Note may not be transferred and exchanged other than as
provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in Global Notes also shall require
compliance with either clause (i) or (ii) below, as applicable, as well as one
or more of the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any
Applicable Procedures; provided, however, that prior to the expiration
of the Distribution Compliance Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to or for the
account or benefit of a "U.S. Person" (as defined in Rule 902(k) of
Regulation S) (other than a "distributor" (as defined in Rule 902(d) of
the Regulation S)). Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note. Except as
may be required by any Applicable Procedures, no written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) if permitted under Section 2.06(a), a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in
(B)(1) above. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
41
(iii) Transfer of Beneficial Interests in a Restricted Global
Note to Another Restricted Global Note. A holder of a beneficial
interest in a Restricted Global Note may transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof or,
if permitted by the Applicable Procedures, item (3) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee is required by the Applicable
Procedures to take delivery in the form of a beneficial
interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(iv) Transfer or Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note or may transfer such beneficial interest to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with a Registration Rights
Agreement and the holder of the beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications required in the
applicable Letter of Transmittal (or is deemed to have made
such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
42
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D)
above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in an
Unrestricted Global Note for Beneficial Interests in a Restricted
Global Note Prohibited. Beneficial interests in an Unrestricted Global
Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted
Global Note.
(c) Transfer and Exchange of Beneficial Interests in Global
Notes for Definitive Notes.
(i) Transfer or Exchange of Beneficial Interests in Restricted
Global Notes for Restricted Definitive Notes. Subject to Section
2.06(a) hereof, if any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
43
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction (as defined in
Section 902(k) of Regulation S) in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in clauses (B) through (D) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof, if applicable; or
(E) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof,
the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.06(h) hereof, the aggregate principal
amount of the applicable Restricted Global Note, and the Company shall
execute and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver a
Restricted Definitive Note in the appropriate principal amount to the
Person designated by the holder of such beneficial interest in the
instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such
holder. Any Restricted Definitive Note issued in exchange for
beneficial interests in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee
shall deliver such Restricted Definitive Notes to the Persons in whose
names such Notes are so registered. Any Restricted Definitive Note
issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Transfer or Exchange of Beneficial Interests in
Restricted Global Notes for Unrestricted Definitive Notes. Subject to
Section 2.06(a) hereof, a holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable
Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the
44
Applicable Procedures) as may be required by such Registration
Rights Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with
the Securities Act.
Upon satisfaction of any of the conditions of any of the
clauses of this Section 2.06(c)(ii), the Company shall execute and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver an Unrestricted
Definitive Note in the appropriate principal amount to the Person
designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such holder, and the
Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.06(h), the aggregate principal amount of the
applicable Restricted Global Note.
(iii) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Unrestricted Definitive Notes. Subject to
Section 2.06(a) hereof, if any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest
for an Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note, then, upon satisfaction of the applicable
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall
reduce or cause to be reduced in a corresponding amount pursuant to
Section 2.06(h) hereof, the aggregate principal amount of the
applicable Unrestricted
45
Global Note, and the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note
in the appropriate principal amount to the Person designated by the
holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee
shall deliver such Unrestricted Definitive Notes to the Persons in
whose names such Notes are so registered. Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests the Global Notes.
(i) Transfer or Exchange of Restricted Definitive Notes for
Beneficial Interests in Restricted Global Notes. If any holder of a
Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in a Restricted Global Note
or to transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such Restricted Definitive Note
proposes to exchange such Restricted Definitive Note for a
beneficial interest in a Restricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a "non-U.S. Person" in an offshore transaction
(as defined in Rule 902(k) of Regulation S) in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the
46
certifications, certificates and Opinion of Counsel required
by item (3)(d) thereof, if applicable; or
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased in a corresponding amount pursuant to Section
2.06(h) hereof, the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, a 144A Global Note, in the case of clause (C)
above, a Regulation S Global Note, and in all other cases, a IAI Global
Note.
(ii) Transfer or Exchange of Restricted Definitive Notes for
Beneficial Interests in Unrestricted Global Notes. A holder of a
Restricted Definitive Note may exchange such Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable
Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted
Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the holder of such Restricted
Definitive Note proposes to transfer such Restricted
Definitive Note to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
47
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
shall be effected in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend shall no longer be required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in
this Section 2.06(d)(ii), the Trustee shall cancel such Restricted
Definitive Note and increase or cause to be increased in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the Unrestricted Global Note.
(iii) Transfer or Exchange of Unrestricted Definitive Notes
for Beneficial Interests in Unrestricted Global Notes. A holder of an
Unrestricted Definitive Note may exchange such Unrestricted Definitive
Note for a beneficial interest in an Unrestricted Global Note or
transfer such Unrestricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in a
corresponding amount pursuant to Section 2.06(h) hereof the aggregate
principal amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes for
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note may not be exchanged for, or transferred
to Persons who take delivery thereof in the form of, beneficial
interests in a Restricted Global Note.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a holder of Definitive Notes and such holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such holder. In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Transfer of Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A, a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
48
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Transfer or Exchange of Restricted Definitive Notes for
Unrestricted Definitive Notes. Any Restricted Definitive Note may be
exchanged by the holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with a Registration Rights
Agreement and the holder, in the case of an exchange, or the
transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by a
Registration Rights Agreement;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted
Definitive Note proposes to exchange such Restricted
Definitive Note for an Unrestricted Definitive Note,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(d)
thereof; or
(2) if the holder of such Restricted
Definitive Notes proposes to transfer such Restricted
Definitive Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive
Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer complies with the Securities Act and that
the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
this Section 2.06(e)(ii), the Trustee shall cancel the prior Restricted
Definitive Note and the Company shall execute, and upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note
in
49
the appropriate aggregate principal amount to the Person designated by
the holder of such prior Restricted Definitive Note in instructions
delivered to the Registrar by such holder.
(iii) Transfer of Unrestricted Definitive Notes to
Unrestricted Definitive Notes. A holder of Unrestricted Definitive
Notes may transfer such Unrestricted Definitive Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer
in accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of the
beneficial interests in the applicable Restricted Global Notes (1) tendered for
acceptance by Persons that make any and all certifications in the applicable
Letters of Transmittal (or are deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement and (2) accepted for exchange in such Exchange
Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount
equal to the aggregate principal amount of the Restricted Definitive Notes
tendered for acceptance by Persons who made the foregoing certifications and
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate principal amount of the applicable Restricted Global Notes,
and the Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
to the Persons designated by the holders of Restricted Definitive Notes so
accepted Unrestricted Definitive Notes in the appropriate aggregate principal
amount.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2),
50
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT),
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO
IN RULE 144(K) UNDER THE SECURITIES ACT AS IN EFFECT
ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE, EXCEPT (A) TO ▇▇▇▇▇▇
CELLULAR SYSTEMS, INC. OR ANY SUBSIDIARY THEREOF, (B)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO ▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(K) UNDER THE SECURITIES ACT AFTER THE ORIGINAL
ISSUANCE OF THE NOTES, THE HOLDER MUST SUBMIT THE
CERTIFICATE OF TRANSFER REFERENCED IN THE INDENTURE
TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC. SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES,"
AND "U.S." PERSON HAVE THE MEANINGS
51
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OR IN ACCORDANCE WITH
SECTION 9.05 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS
52
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(h) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the aggregate principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, the aggregate principal
amount of such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.11, 4.15 and
9.05 hereof).
(ii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange, and shall be entitled to all of
the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
(iii) Neither the Registrar nor the Company shall be required
(A) to issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the date of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest
payment date.
(iv) Prior to due presentment for the 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 for the purpose of receiving
53
payment of principal of, premium, if any, and interest on such Note and
for all other purposes, in each case regardless of any notice to the
contrary.
(v) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
(vi) The Trustee is hereby authorized and directed to enter
into a letter of representation with the Depositary in the form
provided by the Company and to act in accordance with such letter.
(vii) Each Holder of a Note agrees to indemnify the Company
and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Note in violation of
any provision of this Indenture and/or applicable United States Federal
or state securities law.
(viii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary Participants or beneficial owners
of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
(ix) Neither the Trustee nor any Agent shall have any
responsibility for any actions taken or not taken by the Depositary.
SECTION 2.07. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order in accordance with Section 2.02 with
respect to such Note, shall authenticate a replacement Note if the Trustee's
requirements are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof,
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and those described in this Section 2.08 as not outstanding. Except as set forth
in Section 2.09 hereof, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; however, Notes held by
the Company or a Subsidiary of the Company shall not be deemed to be outstanding
for purposes of Section 3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding and interest on the Notes ceases to accrue unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser.
(c) If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary
or an Affiliate of any thereof) holds, on a redemption date or maturity date,
money for the purposes of and sufficient to pay Notes payable on that date, then
on and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.09. 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 by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in conclusively relying on
any such direction, waiver or consent, only Notes that a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication Order
in accordance with Section 2.02 with respect to such Notes, 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 and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 4.02 without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 with respect to such Notes,
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
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The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee upon direction by the Company and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall dispose of such cancelled Notes (subject to the record
retention requirements of the Exchange Act) in its customary manner.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall promptly notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment. The Company shall fix or cause
to be fixed each such special record date and payment date; provided, however,
that no such special record date shall be less than 5 days prior to the related
payment date for such defaulted interest. At least 10 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. CUSIP AND ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" and "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
and "ISIN" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the "CUSIP" and
"ISIN" numbers.
SECTION 2.14. ADDITIONAL INTEREST.
If Additional Interest is payable by the Company pursuant to
the Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest
that is payable and (ii) the date on which such interest is payable pursuant to
Section 4.01 hereof. Unless and until a Responsible Officer of the Trustee
receives such a certificate or instruction or direction from the Holders in
accordance with the terms of this Indenture, the Trustee may assume without
inquiry that no Additional Interest is payable. The foregoing shall not
prejudice the rights of the Holders with respect to their entitlement to
Additional Interest as otherwise set forth in this Indenture or the Notes and
pursuing any action against the Company directly or otherwise directing the
Trustee to take any such action in accordance with the terms of this Indenture
and the Notes. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the details of such payment.
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SECTION 2.15. COMPUTATION OF INTEREST.
(a) Interest on the Notes shall accrue at the rate of 9.875%
per annum and shall be payable semi-annually in arrears on May 1 and November 1,
commencing on May 1, 2005. The Company shall make each interest payment to the
Holders of record on the immediately preceding April 15 and October 15.
(b) Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period shall be agreed to by the Trustee) but
not more than 60 days before a redemption date (but in any event prior to the
notice provided pursuant to Section 3.03 hereof), an Officers' Certificate
setting forth (i) the clause of this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased
in an Asset Sale Offer or a Change of Control Offer at any time, the Trustee
shall select the Notes to be redeemed or purchased among the Holders in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis by lot or in accordance with any other method the Trustee
considers fair and appropriate or in accordance with the Applicable Procedures.
In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption or purchase and, in the case of any Note
selected for partial redemption or purchase, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or subject to purchase also apply to portions of
Notes called for redemption or subject to purchase.
SECTION 3.03. NOTICE OF REDEMPTION.
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Subject to the provisions of Section 3.07 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Additional Interest, if any, on Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP and ISIN number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee at least 45 days (unless a shorter
period shall be agreed to by the Trustee in writing) but not more than 60 days
prior to the redemption date, an Officers' Certificate in accordance with
Sections 13.04 and 13.05 requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption shall become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional.
A notice of redemption shall be deemed to be given when
mailed, whether or not the Holder receives the notice. In any event, failure to
give such notice, or any defect in such notice, shall not affect the validity of
the proceedings for the redemption of the Notes held by Holders to whom such
notice was properly given.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest and Additional Interest, if
any, on all Notes to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, as applicable, interest
shall cease to accrue on the Notes or the portions of Notes called for
redemption or subject to purchase. If a Note is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record date. If
any Note called for redemption or subject to purchase shall not be so paid upon
surrender for redemption or purchase because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal from the redemption date or Purchase Date, as applicable, until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 with respect to such Notes, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Company may redeem the Notes at any time and from time to
time on or after November 1, 2008 at its option, in whole or in part, at a
redemption price equal to the percentage of principal amount set forth below,
plus accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed to the applicable redemption date, if redeemed during the 12-month
period beginning on November 1 each of the years set forth below:
Year Percentage
---- ----------
2008 .......................... 104.938%
2009 .......................... 103.292%
2010 .......................... 101.646%
2011 and thereafter ........... 100.000%
In addition to the preceding paragraph of this Section 3.07,
at any time and from time to time on or prior to November 1, 2007, the Company
may redeem up to 35% of the principal amount of the Notes at a redemption price
equal to 109.875% of their principal amount, plus accrued and unpaid interest
and Additional Interest, if any, on the Notes redeemed to the
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redemption date, with the proceeds of one or more sales of its Capital Stock
(other than Disqualified Stock); provided that, in each case, such redemption
date occurs within 180 days after consummation of such sale and at least 65%
aggregate principal amount of the Notes issued on the Issue Date remains
outstanding after each such redemption.
In addition to the two preceding paragraphs of this Section
3.07(a), at any time prior to November 1, 2008, the Company may also redeem the
Notes in whole or in part, at a redemption price equal to 100% of the principal
amount thereof plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to, the date of redemption (subject to
the right of Holders on the relevant record date to receive interest due on the
relevant interest payment date in respect of then outstanding Notes).
SECTION 3.08. MANDATORY REDEMPTION.
Except as described under Sections 4.11 and 4.15 hereof, the
Company is not required to make any mandatory redemption of, sinking fund
payments for, or offer to repurchase any Notes.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
(a) The Company shall pay or cause to be paid the principal
of, premium, if any, Additional Interest, if any, and interest on the Notes on
the dates and in the manner provided in the Notes. Principal, premium, if any,
Additional Interest, if any, and interest shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company shall pay all
Additional Interest, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan,
The City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee
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of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) 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 4.03. REPORTS.
Whether or not the Company is then required to file reports
with the Commission, the Company shall file with the Commission all such reports
and other information as it would be required to file with the Commission by
Section 13(a) or 15(d) under the Securities Exchange Act of 1934 if it were
subject thereto. The Company shall supply to each Holder who so requests,
without cost to such Holder, copies of such reports and other information,
provided, however, that the reports, information and other documents required to
be filed and provided as described hereunder shall be those of the Parent
Guarantor rather than the Company for so long as (1) the Parent Guarantor is a
Guarantor of the Notes (or the Exchange Notes) and (2) the Parent Guarantor's
filing of such reports, information and other documents satisfies the
requirements of Rule 3-10 of Regulation S-X under the Exchange Act. The Company
shall also comply with the other provisions of TIA Section 314(a) to the extent
required thereby. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate in accordance with
Sections 13.04 and 13.05 stating that a review of the activities of the
Guarantors, the Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each of the Guarantors, the Company and its
Restricted Subsidiaries has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred,
61
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) above shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any officer becoming aware
of any Default or Event of Default, an Officers' Certificate in accordance with
Sections 13.04 and 13.05 specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
Each of the Parent Guarantor and the Company shall pay, and
shall cause each of their Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Guarantor covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each Guarantor (to the extent that each may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, take any of the following actions (each a
"Restricted Payment"):
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(i) declare or pay any dividend or make any distributions on
or with respect to its Capital Stock, other than dividends or
distributions payable solely in Capital Stock (other than Disqualified
Stock) or in options, warrants or other rights to acquire shares of
Capital Stock (other than Disqualified Stock) or dividends or
distributions payable to the Company or any Restricted Subsidiary;
provided that if any such Restricted Subsidiary is not a Wholly Owned
Subsidiary of the Company, distributions or dividends to the holders of
Capital Stock of such Restricted Subsidiary other than the Company
shall be permitted only to the extent a pro rata portion of such
distributions or dividends (measured by value) is paid to the Company
directly or through a Restricted Subsidiary;
(ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of:
(A) the Company or an Unrestricted Subsidiary
(including options, warrants or other rights to acquire such
shares of Capital Stock) held by any Person, or
(B) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital
Stock) held by any Affiliate of the Company (other than a
Wholly Owned Restricted Subsidiary) or any holder (or any
Affiliate of such holder) of 5% or more of the Capital Stock
of the Company;
(iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company that is subordinated to the Notes or any
Indebtedness of a Subsidiary Guarantor that is subordinated to a Note
Guarantee, except a payment of interest or principal at Stated Maturity
on such Indebtedness (other than interest or principal relating to
Indebtedness of the Company or any Subsidiary Guarantor owing to the
Parent Guarantor, DOC or any Subsidiary of the Parent Guarantor other
than the Company and its Restricted Subsidiaries); or
(iv) make any Investment, other than a Permitted Investment,
in any Person, unless, in each case, at the time of, and after giving
effect to, the proposed Restricted Payment:
(A) no Default or Event of Default shall have
occurred and be continuing or would result therefrom or shall
have occurred and be continuing;
(B) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness under Section
4.09(a); and
(C) the aggregate amount of such Restricted Payments
and all other Restricted Payments declared or made after the
Issue Date (the amount, if other than in cash, to be
determined in good faith by the Board of Directors) is less
than the sum of:
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(1) 100% of the Company's Consolidated
EBITDA (or, if its Consolidated EBITDA is a loss,
minus 100% of the amount of such loss) accrued during
the period treated as one accounting period,
beginning on July 1, 2004 to the end of the most
recent fiscal quarter preceding the date of such
Restricted Payment for which consolidated financial
statements of the Parent Guarantor have been filed
with the Commission, minus 1.65 times the Company's
Consolidated Interest Expense for the same period;
plus
(2) the aggregate Net Cash Proceeds received
by the Company after the Issue Date as a capital
contribution or from issuing or selling its Capital
Stock, and options, warrants and other rights to
acquire its Capital Stock, to a Person who is not a
Restricted Subsidiary of the Company (in each case,
exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the
option of the Holder, or are required to be redeemed,
prior to the final Stated Maturity of the Notes);
plus
(3) an amount equal to the net reduction in
Investments that constitute Restricted Payments
resulting from payments of interest, dividends,
repayments or loans or advances, returns of capital
or other transfers of assets to the Company or any
Restricted Subsidiary or from the Net Cash Proceeds
from the sale of any Investment (except to the extent
any such payment or proceeds are included in the
calculation of Consolidated EBITDA), or from
redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as
provided in the definition of "Investment"), not to
exceed, in each case, the amount of the relevant
Investments so being reduced or sold; plus
(4) $45.0 million.
(b) Notwithstanding Section 4.07(a), the following actions
shall not be deemed to violate the foregoing limitation on Restricted Payments:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at the date of declaration, such payment
would comply with Section 4.07(a); (ii) the repurchase, redemption,
defeasance or other acquisition or retirement of Capital Stock of the
Company (or options, warrants or other rights to acquire such Capital
Stock) or any Indebtedness that is subordinated to the Notes or any
Subsidiary Guarantee, in each case in exchange for, or out of the Net
Cash Proceeds of the substantially concurrent sale (other than to any
Restricted Subsidiary of the Company) of, shares of Capital Stock
(other than Disqualified Stock) of the Company;
(iii) the repurchase, redemption, defeasance or other
acquisition or retirement of Indebtedness that is subordinated to the
Notes or any Subsidiary Guarantee with the Net Cash Proceeds from an
incurrence of Indebtedness that meets the requirements of Section
4.09(b)(ii);
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(iv) payments or distributions, to dissenting stockholders in
connection with a consolidation, merger or transfer of assets that
complies with Section 5.01;
(v) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company or
the Parent Guarantor to the extent necessary in the good faith judgment
of the Company's Board of Directors, to prevent the loss or secure the
renewal or reinstatement of any license or franchise held by the
Company or any Restricted Subsidiary from any governmental agency;
(vi) Investments in any Person, including the Parent Guarantor
and its Subsidiaries, and dividends to the Parent Guarantor, in an
aggregate amount (measured on the date each such Investment was made
and without giving effect to subsequent changes in value) at any time
outstanding not to exceed $50.0 million plus, in the case of an
Investment in a Person the primary business of which is a Permitted
Business, an amount not to exceed the Net Cash Proceeds received by the
Company after the Issue Date from the issuance and sale of its Capital
Stock other than Disqualified Stock to a Person that is not a
Subsidiary, except to the extent such Net Cash Proceeds are used to
make Restricted Payments pursuant to Section 4.07(a)(iv)(C)(2) or
Section 4.07(b)(ii);
(vii) the payment, directly or through DOC, of dividends or
other distributions or payments to the Parent Guarantor to the extent
necessary for the Parent Guarantor to make regularly scheduled interest
payments on (i) Existing Parent Indebtedness or (ii) any Indebtedness
(other than Indebtedness owed to an Affiliate of the Parent Guarantor)
incurred to extend, refinance, renew, replace, defease or refund such
Indebtedness, provided that the principal amount (or accreted value or
liquidation preference, if applicable) of such Indebtedness so incurred
did not exceed the principal amount (or accreted value or liquidation
preference, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest or
dividends, if applicable, on the Indebtedness and the amount of all
expenses and premiums incurred in connection therewith);
(viii) the payment, directly or through DOC, of dividends or
other distributions (including by way of repayment of intercompany
indebtedness owed to the Parent Guarantor outstanding on the Issue
Date) to the Parent Guarantor (A) to fund the purchase, redemption,
acquisition, cancellation or other retirement of Existing Preferred
Stock existing on the Issue Date and/or the Existing Parent
Indebtedness outstanding on the Issue Date or any Indebtedness (other
than Indebtedness owed to an Affiliate of the Parent Guarantor)
incurred to extend, refinance, renew, replace, defease or refund such
Indebtedness, provided that the principal amount (or accreted value or
liquidation preference, if applicable) of such Indebtedness so incurred
did not exceed the principal amount (or accreted value or liquidation
preference, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest or
dividends, if applicable, on the Indebtedness and the amount of all
expenses and premiums incurred in connection therewith) or (B) to pay
regularly scheduled dividends on such Existing Preferred Stock which
are then accrued and unpaid (to the extent required or elected by the
Parent Guarantor to be paid in cash), provided that (1) (x) at the time
of such payment and after giving effect to such dividends and the
application of the
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proceeds thereof, the Company's Consolidated Leverage Ratio is less
than 3.85 to 1.00 and (y) the amount of Liquidity immediately before
and after giving effect to such Restricted Payment shall not be less
than $50.0 million or (2) the Net Cash Proceeds from any sale of
Existing Tower Assets are used for such dividends or distributions;
(ix) payments, directly or through DOC, to the Parent
Guarantor in connection with the Tax Sharing Agreement;
(x) payments, directly or through DOC, to the Parent Guarantor
necessary for the Parent Guarantor to pay corporate overhead expenses
in the ordinary course of business;
(xi) payments by the Company, directly or through DOC, to the
Parent Guarantor not to exceed an amount necessary to permit the Parent
Guarantor to (i) make payments in respect of its indemnification
obligations owing to directors, officers or other Persons under the
Parent Guarantor's charter or by-laws or pursuant to written agreements
with any such Person, or obligations in respect of director and officer
insurance (including premiums therefor), or (ii) satisfy its
obligations, or by the Company to satisfy its obligations, under any
applicable registration rights agreement or (iii) make payments in
respect of indemnification obligations of the Parent Guarantor in
connection with any issuance of Capital Stock of the Parent Guarantor
by the Parent Guarantor; and
(xii) (A) the repurchase, redemption, defeasance or other
acquisition or retirement, or (B) the payment, directly or through DOC,
of dividends or other distributions to the Parent Guarantor to fund
such repurchase, redemption, defeasance, acquisition or retirement, of
Existing Preferred Stock or Existing Parent Indebtedness, in each case
in exchange for, or out of the Net Cash Proceeds from, an incurrence of
Indebtedness of the Company in an amount not to exceed $30.0 million,
provided that, except in the case of clause (i) or (ii) above, no Default or
Event of Default shall have occurred and be continuing or occur as a consequence
of the actions or payments set forth therein.
(c) Each Restricted Payment that is permitted as provided in
Section 4.07(b) (other than (A) an exchange of Capital Stock for Capital Stock
or for subordinated Indebtedness referred to in Section 4.07(b)(ii), (B) the
repurchase, redemption or the acquisition or retirement of subordinated
Indebtedness referred to in Section 4.07(b)(iii), and (C) the Net Cash Proceeds
from any issuance of Capital Stock referred to in Section 4.07(b)(ii) or
issuance of Capital Stock referred to in Section 4.07(b)(vi)) shall be included
in calculating whether the conditions of Section 4.07(a)(iv)(C) have been met
with respect to any subsequent Restricted Payments.
(d) Notwithstanding anything to the contrary in this Section
4.07, so long as (i) any of the Senior Preferred Stock or the Parent Guarantor's
10?% Senior Notes due 2010 is outstanding and (ii) the "Limitation on Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries" covenant in
any of the Senior Preferred Stock, or the "Dividend and Other Payment
Restrictions Affecting Subsidiaries" covenant in the Parent Guarantor's 10?%
Senior Notes due 2010, is applicable, the Company and its Restricted
Subsidiaries shall also be
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permitted to make the following Restricted Payments (the "Credit Agreement
Restricted Payment Covenant"):
(A) the Company may make Restricted Payments in the form of
its Capital Stock to DOC; and
(B) so long as no Default shall have occurred and be
continuing or would result therefrom (determined on a pro forma basis
after giving effect thereto), the Company may pay dividends or make
loans to DOC or the Parent Guarantor:
(1) to pay corporate overhead expenses incurred in
the ordinary course of business (which have been allocated to
DOC and its Subsidiaries and are fair and reasonable and
allocated among all of the Subsidiaries of the Parent
Guarantor);
(2) to pay Taxes which are then due and payable by
the Parent Guarantor and DOC as part of a consolidated group
pursuant to the Tax Sharing Agreement (except any such Taxes
which are attributable to Subsidiaries of the Parent Guarantor
other than DOC and its Subsidiaries);
(3) to pay regularly scheduled interest payments
which are due and payable with respect to the Parent Notes;
(4) to pay regularly scheduled dividends which are
then due and payable with respect to the Parent Preferred
Stock (to the extent required, or elected by the Parent
Guarantor, to be paid in cash); and
(5) in an aggregate amount not to exceed the Excess
Cash Flow; provided that if the Parent Leverage Ratio for the
preceding four fiscal quarters is equal to or greater than
4.15 to 1, such aggregate amount shall not exceed 50% of the
Excess Cash Flow; provided further that with respect to any
Restricted Payment pursuant to this clause (5), (A) no Default
shall have occurred or would result therefrom determined on a
pro forma basis as if such Restricted Payment had been made on
the last day of each applicable fiscal year of DOC in which
any such Excess Cash Flow is generated (but excluding, for the
purposes of such determination, any Restricted Payments made
in cash pursuant to this clause (5) during such fiscal year)
and (B) the amount of Liquidity immediately before and after
giving effect to such Restricted Payment shall not be less
than $50.0 million.
(e) For the purposes of Section 4.07(d), Excess Cash Flow
shall mean, for any fiscal year of DOC, the difference, if any, by which:
(i) the sum, without duplication, of:
(A) Consolidated EBITDA of DOC for such fiscal year;
and
(B) the amount of the decrease, if any, in
Consolidated Working Capital for such fiscal year (other than
any such decrease to the extent that it is
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solely attributable to Permitted Acquisitions, Permitted Asset
Swaps and Dispositions consummated during such fiscal year)
exceeds:
(ii) the sum, without duplication, of:
(A) the aggregate amount of capital expenditures (as
determined in accordance with GAAP) by DOC and its
Subsidiaries during such fiscal year (provided that the cash
amount of such capital expenditures shall exclude the
principal amount of purchase-money Indebtedness and Capital
Lease Obligations incurred in connection therewith or financed
with the proceeds of any Reinvestment Deferred Amount during
such fiscal year);
(B) Consolidated Interest Expense of DOC and
commissions, discounts and other fees and charges associated
with Indebtedness to the extent paid in cash during such
fiscal year;
(C) the aggregate amount of all regularly scheduled
principal payments of Funded Debt of DOC and its Subsidiaries
made during such fiscal year (other than in respect of any
revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder);
(D) the amount of the increase, if any, in
Consolidated Working Capital for such fiscal year (other than
any such increase to the extent that it is solely attributable
to Permitted Acquisitions, Permitted Asset Swaps and
Dispositions consummated during such fiscal year);
(E) the amount of Taxes of DOC and its Subsidiaries
paid by them in cash during such fiscal year;
(F) any cash payments made by DOC or its Subsidiaries
during such fiscal year which were added to Consolidated Net
Income of DOC for the purposes of determining Consolidated
EBITDA of DOC pursuant to clause (5) of the definition
thereof; and
(G) (to the extent not already deducted pursuant to
any of the foregoing items (A) through (G)) the amount of
Restricted Payments made during such fiscal year in cash by
the Company to DOC or the Parent Guarantor pursuant to
Sections 4.07(d)(B)(1), (2), (3) and (4).
For the purposes of Section 4.07(d) and Section 4.07(e) only, the following
defined terms shall have the meaning set forth in Schedule I annexed hereto:
Capital Lease Obligations, Consolidated EBITDA, Consolidated Interest Expense,
Consolidated Net Income, Consolidated Working Capital, Default, Dispositions,
Excess Cash Flow, Funded Debt, Liquidity, Parent Leverage Ratio, Parent Notes,
Permitted Acquisitions, Permitted Asset Swaps, Reinvestment Deferred Amount,
Taxes and Tax Sharing Agreement.
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(f) Any Credit Agreement Restricted Payments shall be included
(without duplication) in calculating whether the conditions of Section
4.07(a)(iv)(C) have been met with respect to any subsequent Restricted Payments.
(g) Notwithstanding anything to the contrary in Section 4.07,
and provided no Triggering Event has occurred or is created thereby (as
determined on a pro forma basis), such covenant shall not restrict or prohibit
the payment, directly or through DOC, of Restricted Payments, loans, advances or
other distributions to the Parent Guarantor in amounts sufficient (when
aggregated with the amounts of all other payments for such purposes from all
other Subsidiaries of the Parent Guarantor) to pay regularly-scheduled cash
distributions or cash interest payments on each series of Parent Preferred Stock
and the related Exchange Debentures, if any; provided that if any Triggering
Event has occurred and is continuing, such payment shall be subject to the
following terms, conditions and limitations: (i) the amount of any such payment
(when aggregated with the amounts of all other payment for such purposes from
all other Subsidiaries of the Parent Guarantor) shall not exceed the sum of (A)
amounts then required to make any cash payment of dividends on the Parent
Preferred Stock or interest on the Exchange Debentures, if issued, and (B) the
next regularly scheduled cash payment of the dividend on the Parent Preferred
Stock or interest on the Exchange Debentures, if issued; (ii) such Triggering
Event (from the date of notice of the existence of the earliest such Triggering
Event if more than one exists) has continued for 180 days and has not been cured
or waived; and (iii) such Triggering Event is not caused by an Event of Default
as set forth in Sections 6.01(a), (b), (g) or (h), or clause (b) of the
definition of Triggering Event; provided further that so long as any debt is
owed from the Company or any Restricted Subsidiaries to the Parent Guarantor,
any such payment made pursuant to this Section 4.07(g) shall be deemed to be
repayment of an applicable amount of such debt. Any such payment pursuant to
this Section 4.07(g) shall be included (without duplication) in calculating
whether the conditions of Section 4.07(a)(iv)(C) have been met with respect to
any subsequent Restricted Payments.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
(a) The Company and its Restricted Subsidiaries shall not
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to:
(i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned
by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary;
(iii) make loans or advances to the Company or any other
Restricted Subsidiary; or
(iv) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
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(b) The provisions of Section 4.08(a) shall not apply to any
encumbrances or restrictions:
(i) existing under agreements (including this Indenture and
the indenture for the 2011 Notes) governing Indebtedness existing on
the Issue Date and Credit Agreements, and any amendments, extensions,
refinancings, renewals or replacements of such agreements; provided
that, the encumbrances and restrictions in any such amendments,
extensions, refinancings, renewals or replacements are no more
restrictive in any material respect than those encumbrances or
restrictions that are then in effect and that are being extended,
refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred
in contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired,
and any amendments to such encumbrances or restrictions; provided that,
any such amendments are no more restrictive in any material respect
than those encumbrances or restrictions that are then in effect and
that are being amended;
(iv) in the case of restrictions relating to the transfers of
property, restrictions that:
(A) restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or
asset;
(B) exist by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary
not otherwise prohibited by this Indenture; or
(C) arise or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of
property or assets of the Company or any Restricted Subsidiary
in any manner material to the Company or any Restricted
Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary; or
(vi) contained in the terms of any Indebtedness (other than as
contemplated by Section 4.08(b)(i)), or any agreement creating
Indebtedness, of a Restricted Subsidiary entered into after the Issue
Date if:
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(A) the encumbrance or restriction applies only if
there is a payment default, a default with respect to a
financial covenant, or an event of default resulting in the
acceleration of the final maturity of such Indebtedness;
(B) the encumbrance or restriction is not materially
more disadvantageous to Holders than is customary in
comparable financings (as determined by the Company); and
(C) the Company determines that the encumbrance or
restriction will not materially affect the ability to pay
interest on the Notes at their Stated Maturity or principal
and accrued and unpaid interest on the Notes at their final
Stated Maturity.
(c) The Company and its Restricted Subsidiaries shall not be
precluded from:
(i) creating, incurring, assuming or permitting to exist any
Liens otherwise permitted under Section 4.13; or
(ii) restricting the sale of their assets that secure
Indebtedness of the Company or its Restricted Subsidiaries.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS.
(a) Neither the Company nor any Restricted Subsidiary may
incur any Indebtedness; provided, however, that the Company and any Subsidiary
Guarantor may incur Indebtedness, if, after giving effect to the incurrence of
such Indebtedness and the receipt and application of the proceeds therefrom, the
Consolidated Leverage Ratio would be less than 4.35 to 1.
(b) Notwithstanding the provisions of Section 4.09(a), the
Company and any Restricted Subsidiary (except as specified below) may incur the
following types of Indebtedness:
(i) additional Indebtedness of the Company or any Subsidiary
Guarantor outstanding under one or more Credit Agreements at any time
in an aggregate principal amount not to exceed $125.0 million incurred
under this clause (i), less any amount of such Indebtedness permanently
repaid as provided under Section 4.11;
(ii) Permitted Refinancing Indebtedness issued in exchange
for, or the net proceeds of which are used to refinance or refund, then
outstanding Indebtedness, other than Indebtedness incurred under clause
(i), (iii), (iv), (v) or (ix) of this Section 4.09(b), and any
refinancings thereof in an amount not to exceed the amount so
refinanced or refunded (plus premiums, accrued interest, accrued
dividends, fees and expenses);
(iii) Indebtedness:
(A) in respect of performance, surety or appeal bonds
provided in the ordinary course of business,
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(B) under Currency Agreements and Interest Rate
Agreements, but only if such agreements:
(1) are designed solely to manage foreign
currency exchange rate or interest rate risk; and
(2) do not increase the Indebtedness of the
obligor outstanding at any time other than as a
result of fluctuations in foreign currency exchange
rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder; or
(C) arising from agreements providing for
indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the
Company or any of its Restricted Subsidiaries pursuant to such
agreements, in any case incurred in connection with the
disposition of any business, assets or Restricted Subsidiary
of the Company (other than Guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business,
assets or Restricted Subsidiary of the Company for the purpose
of financing such acquisition), in an amount not to exceed the
gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
(iv) Guarantees of Indebtedness of the Company by any
Subsidiary Guarantor or by the Company of Indebtedness of any
Subsidiary Guarantor so long as such Indebtedness was permitted to be
incurred under another provision of this Section 4.09 and Section 4.10;
(v) intercompany Indebtedness (other than any Guarantee to the
extent addressed in clause (iv) above) by or among the Company and a
Subsidiary Guarantor; provided, however, that (A) if the Company or a
Subsidiary Guarantor is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all obligations in respect of the Notes and (B) (1) any
subsequent issuance or transfer of Capital Stock that results in any
such Indebtedness being held by a Person other than the Company or
another Subsidiary Guarantor thereof and (2) any sale or other transfer
of any such Indebtedness to a Person other than the Company or another
Subsidiary Guarantor thereof shall be deemed, in each case, to
constitute an incurrence of Indebtedness by the Company or such
Subsidiary Guarantor, as the case may be, that was not permitted by
this clause (v);
(vi) Indebtedness of the Company and its Restricted
Subsidiaries existing on the Issue Date;
(vii) Indebtedness represented by the Notes and the 2011 Notes
issued on the Issue Date and any Exchange Notes issued in exchange for
such Notes (or exchange notes issued in exchange for such 2011 Notes)
pursuant to the Registration Rights Agreement, and any Subsidiary
Guarantee (or Guarantee by any Subsidiary in the case of such 2011
Notes) of the foregoing;
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(viii) Acquired Indebtedness in an aggregate principal amount
not to exceed $75.0 million at any time outstanding;
(ix) Indebtedness incurred by the Company or its Subsidiary
Guarantors to finance or refinance the cost to acquire cellular
properties by a Restricted Subsidiary after the Issue Date; provided,
however, that the aggregate principal amount of such Indebtedness
outstanding at any time may not exceed $75.0 million;
(x) Indebtedness of the Company or the Subsidiary Guarantors
represented by Capitalized Lease Obligations, mortgage financings or
purchase money obligations, incurred for the purpose of financing all
or part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company or
such Subsidiary Guarantor in an aggregate principal amount of such
Indebtedness outstanding at any time (together with refinancings
thereof) not to exceed $50.0 million; and
(xi) Capitalized Lease Obligations incurred in connection with
a sale and leaseback transaction involving Existing Tower Assets.
(c) The maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness, due solely
to the result of fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 4.09, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.13
shall not be treated as Indebtedness.
(e) For purposes of determining compliance with this Section
4.09, in the event that an item of Indebtedness (including Acquired
Indebtedness) meets the criteria of more than one of the types of Indebtedness
described in Section 4.09(b) or would be entitled to be incurred pursuant to
Section 4.09(a) or any combination of the foregoing, the Company, in its sole
discretion, shall classify, and from time to time may reclassify (in whole or
part), such item of Indebtedness in any manner that complies with this Section
4.09. Accrual of interest, the accretion of accreted value and the payment of
interest in the form of additional Indebtedness or the payment of dividends on
Preferred Stock in the form of additional shares of the same class or series of
Preferred Stock shall not be deemed an incurrence of Indebtedness for purposes
of this Section 4.09.
(f) None of the Company, the Parent Guarantor, DOC or any
Subsidiary Guarantor will incur any Indebtedness that pursuant to its terms is
subordinate or junior in right of payment to any Indebtedness unless such
Indebtedness is subordinated in right of payment to the Notes, the Parent
Guarantee or the relevant Subsidiary Guarantee, as applicable, to the same
extent; provided that Indebtedness will not be considered subordinate or junior
in right of
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payment to any other Indebtedness solely by virtue of being unsecured or secured
to a greater or lesser extent or with greater or lower priority.
SECTION 4.10. ISSUANCE OF GUARANTEES BY RESTRICTED
SUBSIDIARIES.
(a) The Company shall cause each Domestic Restricted
Subsidiary created or acquired (including any Unrestricted Subsidiary that is
redesignated a Restricted Subsidiary that is a Domestic Restricted Subsidiary)
after the Issue Date to execute and deliver a supplemental indenture to this
Indenture providing for a Note Guarantee (a "Subsidiary Guarantee"), of payment
of the Notes by such Restricted Subsidiary.
(b) The Company shall not permit any of Restricted Subsidiary
that is not a Subsidiary Guarantor to guarantee, directly or indirectly, any
Indebtedness of the Company or any other Subsidiary Guarantor which ranks
equally with or subordinate in right of payment to the Notes ("Guaranteed
Indebtedness") or any Note Guarantee, unless
(i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for a Subsidiary Guarantee
by such Restricted Subsidiary, and
(ii) such Restricted Subsidiary waives, and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights
of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Subsidiary Guarantee;
(c) If the Guaranteed Indebtedness:
(i) ranks equally with the Notes, then the Guarantee of such
Guaranteed Indebtedness shall rank equally with, or be subordinated to,
the Subsidiary Guarantee; or
(ii) is subordinated to the Notes, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary
Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Notes.
(d) Notwithstanding anything to the contrary in this Section
4.10, any Subsidiary Guarantee by a Restricted Subsidiary may provide by its
terms that it shall be automatically and unconditionally released and discharged
upon:
(i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's and each Restricted
Subsidiary's Capital Stock in, or all or substantially all the assets
of, such Restricted Subsidiary, which sale, exchange or transfer is not
prohibited by this Indenture,
(ii) designation of such Subsidiary Guarantor as an
Unrestricted Subsidiary in compliance with the provisions of this
Indenture, or
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(iii) the release or discharge of the Guarantee of
Indebtedness which resulted in the creation of such Subsidiary
Guarantee, except a discharge or release by or as a result of payment
under such Guarantee.
SECTION 4.11. ASSET SALES.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate any Asset Sale, unless:
(i) the consideration received by the Company or such
Restricted Subsidiary is at least equal to the Fair Market Value of the
assets sold or disposed of;
(ii) at least 75% of the consideration received consists of
cash or Cash Equivalents or Replacement Assets; provided that if such
Asset Sale does not involve Collateral, cash shall include the
assumption of any liabilities of the Company or any Restricted
Subsidiary (other than contingent liabilities and Indebtedness that is
subordinated in right of payment to the Notes, in each case other than
liabilities owed to the Company or any Affiliate of the Company) to the
extent the Company or such Restricted Subsidiary is irrevocably and
unconditionally released from such liability; and
(iii) if such Asset Sale involves the transfer of Collateral:
(A) such Asset Sale complies with the applicable
provisions of the Security Documents, and
(B) to the extent required by the Security Documents,
all consideration (including cash and Cash Equivalents)
received in such Asset Sale shall be expressly made subject to
the Lien under the Security Documents, which Lien shall be (A)
in respect of the Primary Collateral, a First Priority Lien
with respect to the Notes, and (B) in respect of the Other
Collateral, a Second Priority Lien with respect to Notes.
(b) The Net Cash Proceeds from any Asset Sale may be applied
within 12 months after the date of such Asset Sale, in the sole discretion of
the Company:
(i) to purchase Replacement Assets; provided that, to the
extent that such Net Cash Proceeds represent proceeds of Collateral,
the Company or the applicable Restricted Subsidiary promptly grants to
the Collateral Trustee a security interest in such assets pursuant to
the Security Documents; which security interest shall be (i) in respect
of the proceeds of Primary Collateral, a First Priority Lien with
respect to the Notes, and (ii) in respect of the proceeds of Other
Collateral, a Second Priority Lien with respect to the Notes;
(ii) to the extent that such Net Cash Proceeds represent
proceeds of the Other Collateral, to the repayment of the Indebtedness
under the ▇▇▇▇▇▇ Credit Agreement or other First Lien Obligations;
75
(iii) to the extent that such Net Cash Proceeds represent
proceeds of the Primary Collateral, to the repayment of the
Indebtedness under the ▇▇▇▇▇▇ Credit Agreement or other First Lien
Obligations (other than the Notes), on a pro rata basis, but only up to
an aggregate principal amount equal to such Net Cash Proceeds to be
used to repay Indebtedness pursuant to this clause (iii) multiplied by
a fraction, the numerator of which is the aggregate principal amount of
such Indebtedness to be repaid and the denominator of which is the
aggregate principal amount of all First Lien Obligations, based on
amounts outstanding on the date of closing of such Asset Sale; provided
that the Company uses the remaining Net Cash Proceeds to be used to
repay Indebtedness pursuant to this clause (iii) to make an offer to
purchase (an "Asset Sale Offer") from the Holders of the Notes within
five (5) Business Days of such repayment of such Indebtedness under the
▇▇▇▇▇▇ Credit Agreement or other First Lien Obligations on a pro rata
basis (based on the principal amount of the 2011 Fixed Rate Notes and
the 2011 Floating Rate Notes), an aggregate principal amount of the
2011 Notes equal to such remaining Net Cash Proceeds at a purchase
price equal to 100% of the principal amount thereof, plus accrued
interest and Additional Interest, if any, to the payment date, in
accordance with the indenture governing the 2011 Notes; or
(iv) to the extent that such Net Cash Proceeds are not from
Collateral, to the permanent repayment of unsubordinated Indebtedness
of the Company or any Subsidiary Guarantor, in each case owing to a
Person other than the Company or any Affiliate of the Company.
(c) The amount of Net Cash Proceeds not applied during the
12-month period as set forth in Section 4.11(b) shall constitute "Excess
Proceeds." If, as of the first day of any calendar month, the aggregate amount
of Excess Proceeds not theretofore subject to an Asset Sale Offer totals at
least $35.0 million, (i) the Company shall commence, not later than the
fifteenth business day of such month, and consummate an Asset Sale Offer in
accordance with the indenture governing the 2011 Notes, for an aggregate
principal amount of the 2011 Notes (and if required by the terms of any
Applicable Pari Passu Indebtedness with respect to the 2011 Notes, from the
holders of such Applicable Pari Passu Indebtedness) on a pro rata basis based on
the principal amount of the 2011 Fixed Rate Notes and the 2011 Floating Rate
Notes, equal to the Excess Proceeds at a purchase price equal to 100% of the
principal amount thereof, plus accrued interest and Additional Interest, if any,
to the payment date, and (ii) if any such Excess Proceeds remain after such
Asset Sale Offer referred to in clause (i) above, the Company shall commence and
consummate an Asset Sale Offer for an aggregate principal amount of Notes (and
if required by the terms of any Applicable Pari Passu Indebtedness with respect
to the Notes, from the holders of such Applicable Pari Passu Indebtedness) on a
pro rata basis, equal to such remaining Excess Proceeds at a purchase price
equal to 100% of the principal amount thereof, plus accrued interest and
Additional Interest, if any, to the payment date.
(d) If any Excess Proceeds remain after consummation of the
Asset Sale Offer relating to the 2011 Notes required in Section 4.11(c)(i) and
the Asset Sale Offer required in Section 4.11(c)(ii), the Company or the
applicable Restricted Subsidiary may use those Excess Proceeds for any purpose
not otherwise prohibited by this Indenture and the $35.0 million threshold set
forth in Section 4.11(c) shall be reset at zero.
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(e) In the event that the Company shall be required to
commence an Asset Sale Offer, it shall follow the procedures set forth below.
(i) The Company shall cause a notice of the Asset Sale Offer
to be sent at least once to the Dow ▇▇▇▇▇ News Service or similar
business news service in the United States.
(ii) The Company shall commence the Asset Sale Offer by
sending, by first-class mail, with a copy to the Trustee, to each
Holder at such Holder's address appearing in the Security Register, a
notice the terms of which shall govern the Asset Sale Offer stating:
(A) that the Asset Sale Offer is being made pursuant
to this Section 4.11;
(B) the amount of Net Cash Proceeds, in the case of
an Asset Sale Offer pursuant to Section 4.11(b)(iii) or, the
amount of Excess Proceeds, in the case of an Asset Sale Offer
pursuant to Section 4.11(c)(i), being offered to purchase
Notes (and, in the case of an Asset Sale Offer pursuant to
Section 4.11(c)(i), if required by the terms of any Applicable
Pari Passu Indebtedness with respect to the Notes, such
Applicable Pari Passu Indebtedness) pursuant to Section
4.11(b)(iii) or Section 4.11(c)(i), as the case may be (the
"Asset Sale Offer Amount"), the purchase price set forth in
Section 4.11(b)(iii) or Section 4.11(c)(i), as the case may
be, the Asset Sale Offer Period and the Asset Sale Purchase
Date (each as defined below);
(C) except as provided in Section 4.11(e)(ii)(I),
that all Notes timely tendered and not withdrawn shall be
accepted for payment;
(D) that any Note not tendered or accepted for
payment shall continue to accrue interest;
(E) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Purchase
Date;
(F) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes
purchased in integral multiples of $1,000 only;
(G) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice before the close of
business on the third Business Day before the Asset Sale
Purchase Date;
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(H) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent,
as the case may be, receives, not later than the expiration of
the Asset Sale Offer Period, a telegram, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of the Note (or portions thereof) the
Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased;
(I) that, if the aggregate principle amount of Notes
(and if required by the terms of any Applicable Pari Passu
Indebtedness with respect to the Notes, such Applicable Pari
Passu Indebtedness) tendered in the Asset Sale Offer (or
required to be purchased, prepaid or redeemed) exceeds the
Asset Sale Offer Amount, the Company shall select the Notes
and such Applicable Pari Passu Indebtedness to be purchased,
prepaid or redeemed on a pro rata basis and such Applicable
Pari Passu Indebtedness tendered (or required to be purchased,
prepaid or redeemed), with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations
of $1,000 or integral multiples thereof, shall be purchased,
prepaid or redeemed;
(J) that Holders whose Notes were purchased in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred
by book-entry transfer); and
(K) any other procedures the Holders must follow in
order to tender their Notes (or portions thereof) for payment
and the procedures that Holders must follow in order to
withdraw an election to tender Notes (or portions thereof) for
payment.
(iii) The Asset Sale Offer shall remain open for a period of
at least 30 days but no more than 60 days following its commencement,
except to the extent that a longer period is required by applicable law
(the "Asset Sale Offer Period"). No later than five (5) Business Days
after the termination of the Asset Sale Offer Period (the "Asset Sale
Purchase Date"), the Company shall purchase the Asset Sale Offer Amount
or, if less than the Asset Sale Offer Amount has been tendered, all
Notes and Applicable Pari Passu Indebtedness, if any, tendered (or
required to be purchased, prepaid or redeemed) in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made. The Company shall publicly
announce the results of the Asset Sale Offer on the Asset Sale Purchase
Date.
(iv) On or prior to the Asset Sale Purchase Date, the Company
shall, to the extent lawful:
(A) accept for payment on a pro rata basis to the
extent necessary, the Asset Sale Offer Amount of Notes or
portions of Notes, and Applicable Pari Passu Indebtedness, if
any, or portions of Applicable Pari Passu Indebtedness,
properly tendered (or required to be purchased, prepaid or
redeemed) pursuant to the Asset Sale Offer, or if less than
the Asset Sale Offer Amount has been tendered or required to
be purchased, prepaid or redeemed, all Notes and
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Applicable Pari Passu Indebtedness, if any, tendered (or
required to be purchased, prepaid or redeemed);
(B) deposit with the Paying Agent funds in an amount
equal to the purchase price as set forth in Section
4.11(b)(iii) or Section 4.11(c)(i), as applicable, in respect
of all Notes or portions of Notes, or Applicable Pari Passu
Indebtedness, if any, or portions of Applicable Pari Passu
Indebtedness, properly tendered (or required to be purchased,
prepaid or redeemed); and
(C) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Company that such Notes or
portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09.
(v) The Depositary or the Paying Agent (or the Company, if
acting as the Paying Agent), as the case may be, shall promptly deliver
to each tendering Holder the purchase price as set forth in Section
4.11(b)(iii) or 4.11(c)(i), as applicable. In the event that any
portion of the Notes surrendered is not purchased by the Company, the
Company shall promptly execute and issue a new Note in a principal
amount equal to such unpurchased portion of the Note surrendered, and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver (or cause to be
transferred by book-entry) such new Note to such Holder; provided,
however, that each such new Note shall be in a principal amount of
$1,000 or an integral multiple thereof.
(vi) If the Asset Sale Purchase Date is on or after a record
date and on or before the related interest payment date, any accrued
and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no
additional interest shall be payable to Holders who tender Notes
pursuant to the Asset Sale Offer.
(f) The Company shall comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section 4.11
or other provisions of this Indenture, the Company shall comply with applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.11 or such other provision by virtue of such
compliance.
SECTION 4.12. TRANSACTIONS WITH AFFILIATES.
(a) The Company and its Restricted Subsidiaries will not,
directly or indirectly, engage in any transaction including, without limitation,
the purchase, sale, lease or exchange of property or assets, or the rendering of
any service, with any Affiliate except (i) upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could be
obtained in a comparable arm's-length transaction with an unrelated Person and
(ii) (A)
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with respect to any transaction or series of related transactions involving
aggregate consideration in excess of $15.0 million, such transaction is approved
by at least a majority of the disinterested members of the Board of Directors or
(B) with respect to any transaction or series of related transactions involving
aggregate consideration in excess of $35.0 million, the Company obtains a
written opinion as to the fairness to Holders of such transaction or series of
related transactions issued by an investment banking, accounting or appraisal
firm of national standing.
(b) The provisions of Section 4.12(a) shall not prohibit:
(i) any employment agreement, employee benefit plan, officer
and director indemnification agreement or any similar arrangement
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business;
(ii) any transaction solely between the Company and any of its
Restricted Subsidiaries or solely between Restricted Subsidiaries or
among the Company, any of its Restricted Subsidiaries and one or more
non-Affiliates;
(iii) the payment of reasonable and customary regular fees and
indemnity payments to directors of the Company who are not employees of
the Company and the payment of reasonable compensation and indemnity
payments to officers of the Company;
(iv) any payments or other transactions pursuant to any
tax-sharing agreement between the Company and any other Person with
which the Company files a consolidated tax return or with which the
Company is part of a consolidated group for tax purposes;
(v) any Restricted Payments or Permitted Investments not
prohibited by Section 4.07;
(vi) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company holds, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
(vii) any agreement existing and as in effect on the Issue
Date, including the Management Agreement and Equipment Lease and Switch
sharing Agreements and, in each case, any amendment thereto so long as
any such amendment is no less favorable (other than, with respect to
the Management Agreement, as a direct result of any changes in
applicable regulations) to the Company or any of its Restricted
Subsidiaries, as the case may be, in any material respect than the
original agreement as in effect on the Issue Date;
(viii) the provision of, or payment for, services in the
ordinary course of business on terms no less favorable to the Company
and its Restricted Subsidiaries, taken as a whole, than those that
would be obtained in a comparable transaction with an unrelated Person;
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(ix) loans or advances to employees in the ordinary course of
business not to exceed $3.0 million in the aggregate at any one time
outstanding; and
(x) any issuance of Equity Interests (other than Disqualified
Stock) of the Company to Affiliates of the Company.
SECTION 4.13. LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien of any kind securing Indebtedness,
Attributable Debt or trade payables, other than Permitted Liens, upon any of the
Company's, or its Restricted Subsidiaries' property or assets, now owned or
acquired after the Issue Date. The Company shall not allow Capital Stock in DOC
or the Company to be subject to any Liens securing any Indebtedness other than
Indebtedness pursuant to the Credit Agreements (including the ▇▇▇▇▇▇ Credit
Agreement) or this Indenture.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate or limited liability company existence, as the case may be, and
the corporate, limited liability company, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company, such
Guarantor or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and the Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Restricted Subsidiaries, if the Board of Directors of the
Company shall each determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and the Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL
TRIGGERING EVENT.
(a) If a Change of Control Triggering Event occurs, each
Holder shall have the right to require the Company to repurchase all or any part
of such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer"). In the Change of Control Offer, the Company shall offer a
payment in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Additional Interest, if any, to
the repurchase date (the "Change of Control Payment"). Within 30 days following
any Change of Control Triggering Event, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the Change of Control Purchase Date
specified in the notice, which date will be no earlier than 30 days and no later
than 60 days from the date such notice is mailed, pursuant to the following
procedures and described in such notice:
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(i) The Company shall cause a notice of the Change of Control
Offer to be sent at least once to the Dow ▇▇▇▇▇ News Service or similar
business news service in the United States.
(ii) The Company shall commence the Change of Control Offer by
sending, by first-class mail, with a copy to the Trustee, to each
Holder at such Holder's address appearing in the Security Register, a
notice the terms of which shall govern the Change of Control Offer
stating:
(A) that a Change of Control has occurred, the
circumstances and relevant facts regarding the Change of
Control and that a Change of Control Offer is being made
pursuant to this Section 4.15;
(B) the purchase price set forth in Section 4.15(a),
the Change of Control Offer Period and the Change of Control
Purchase Date (each as defined below);
(C) that all Notes timely tendered and not withdrawn
shall be accepted for payment;
(D) that any Note not tendered or accepted for
payment shall continue to accrue interest;
(E) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(F) that Holders electing to have a Note purchased
pursuant to an Change of Control Offer may elect to have Notes
purchased in integral multiples of $1,000 only;
(G) that Holders electing to have a Note purchased
pursuant to any Change of Control Offer shall be required to
surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice before the close of
business on the third Business Day before the Change of
Control Purchase Date;
(H) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent,
as the case may be, receives, not later than the expiration of
the Change of Control Offer Period, a telegram, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of the Note (or portions thereof) the
Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased;
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(I) that Holders whose Notes were purchased in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred
by book-entry transfer); and
(J) any other procedures the Holders must follow in
order to tender their Notes (or portions thereof) for payment
and the procedures that Holders must follow in order to
withdraw an election to tender Notes (or portions thereof) for
payment.
(iii) The Change of Control Offer shall remain open for a
period of at least 30 days but no more than 60 days following its
commencement, except to the extent that a longer period is required by
applicable law (the "Change of Control Offer Period"). No later than
five (5) Business Days (and in any event no later than the 60th day
following the Change of Control) after the termination of the Change of
Control Offer Period (the "Change of Control Purchase Date"), the
Company shall purchase the Change of Control Offer Amount or, if less
than the Change of Control Offer Amount has been tendered, all Notes
tendered in response to the Change of Control Offer. Payment for any
Notes so purchased shall be made in the same manner as interest
payments are made. The Company shall publicly announce the results of
the Change of Control Offer on the Change of Control Purchase Date.
(iv) On or prior to the Change of Control Purchase Date, the
Company shall, to the extent lawful:
(A) accept for payment Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer;
(B) deposit with the Paying Agent funds in an amount
equal to the purchase price set forth in Section 4.15(a) in
respect of all Notes or portions of Notes properly tendered;
and
(C) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Company that such Notes or
portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.15.
(D) The Depositary or the Paying Agent (or the
Company, if acting as the Paying Agent), as the case may be,
shall promptly (but not later than 60 days from the date of
the Change of Control) deliver to each tendering Holder the
purchase price set forth in Section 4.15(a). In the event that
any portion of the Notes surrendered is not purchased by the
Company, the Company shall promptly execute and issue a new
Note in a principal amount equal to such unpurchased portion
of the Note surrendered, and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate and deliver (or cause to be
transferred by book-entry) such new Note to such Holder;
provided,
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however, that each such new Note shall be in a principal
amount of $1,000 or an integral multiple thereof.
(E) If the Purchase Date is on or after a record date
and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in
whose name a Note is registered at the close of business on
such record date, and no additional interest shall be payable
to Holders who tender Notes pursuant to the Change of Control
Offer.
(b) The Company shall comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.15 or other provisions of this Indenture, the Company shall comply with
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 or such other provision by
virtue of such compliance.
(c) The provisions described in this Section 4.15 that require
the Company to make a Change of Control Offer following a Change of Control
Triggering Event shall be applicable whether or not any other provisions of this
Indenture are applicable.
(d) The Company shall not be required to make a Change of
Control Offer upon a Change of Control Triggering Event if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 4.15 and repurchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.16. LIMITATIONS ON LINE OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than a Permitted Business, except to
such extent as is not material to the Company and its Restricted Subsidiaries,
taken as a whole.
SECTION 4.17. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes affected thereby for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or such Notes
unless that consideration is offered to be paid or is paid to all Holders of the
Notes affected thereby that consent, waive or agree to amend in the time frame
set forth in the solicitation documents relating to the consent, waiver or
agreement.
SECTION 4.18. ISSUANCE AND SALE OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES.
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The Company and its Restricted Subsidiaries shall not sell,
directly or indirectly, any shares of Capital Stock of a Restricted Subsidiary,
including options, warrants or other rights to purchase shares of such Capital
Stock, except:
(a) to the Company or a Restricted Subsidiary;
(b) issuances of director's qualifying shares or sales to
foreign nationals of shares of Capital Stock of Restricted
Subsidiaries, to the extent required by applicable law; or
(c) if, immediately after giving effect to such issuance or
sale, such Restricted Subsidiary (i) would continue to be a Restricted
Subsidiary or (ii) if it would no longer constitute a Restricted
Subsidiary, any remaining Investment in such Person after giving effect
to the issuance or sale would have been permitted to be made under
Section 4.07, if made on the date of such issuance or sale.
SECTION 4.19. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company and its Restricted Subsidiaries may enter into a sale
and leaseback transaction if:
(a) the Company or the relevant Restricted Subsidiary could
have incurred Indebtedness in an amount equal to the Attributable Debt
relating to the sale and leaseback transaction pursuant Section 4.09;
(b) the net cash proceeds of the sale and leaseback
transaction are at least equal to the Fair Market Value, as determined
in good faith by the Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the
subject of the sale and leaseback transaction; and
(c) the transfer of assets in the sale and leaseback
transaction is permitted by, and the Company or the relevant Restricted
Subsidiary applies the proceeds of the transaction in compliance with
Section 4.11.
Notwithstanding anything to the contrary in this Section 4.19,
the restrictions in this Section 4.19 shall not apply to sale and leaseback
transactions involving Existing Tower Assets.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
None of the Company, the Parent Guarantor or DOC shall
consolidate or merge with, or sell, lease or otherwise dispose of all or
substantially all of its property and assets in one
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transaction or a series of related transactions to any Person or permit any
Person to merge with or into it unless:
(a) (i) it will be the resulting, surviving or transferee
Person (the "Successor Company") or (ii) the Successor Company (if
other than it) shall be a corporation organized and existing under the
laws of the United States of America, or, any state or jurisdiction
thereof and the Successor Company assumes all of its obligations under
the Notes, this Indenture, the Security Documents, the Parent Guarantee
and the Registration Rights Agreement, as applicable, pursuant to
agreements reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(c) in the case of a transaction involving the Company,
immediately after giving effect to such transaction on a pro forma
basis (i) the Company, or the Successor Company or resulting company,
as the case may be, could incur at least $1.00 of Indebtedness under
Section 4.09(a) or (ii) the Consolidated Leverage Ratio for the Company
or the Successor Company or resulting company, as the case may be, will
not be greater than the Consolidated Leverage Ratio for the Company
immediately prior to such transaction; provided that this Section
5.01(c) shall not apply to a consolidation or merger with or into a
Wholly Owned Restricted Subsidiary in connection with which no
consideration, other than Common Stock in the Successor Company or the
Company, shall be issued or distributed to the stockholders of the
Company; and
(d) it delivers to the Trustee an Officers' Certificate in
accordance with Sections 13.04 and 13.05, attaching, in the case of a
transaction involving the Company, the arithmetic computations to
demonstrate compliance with Section 5.01(c), and an Opinion of Counsel,
in each case stating that such consolidation, merger or transfer
complies with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied with.
Section 5.01(c) shall not apply (x) if, in the good faith
determination of the Company's Board of Directors, the principal purpose of the
transaction is to change the Company's state of incorporation and the
transaction does not have as one of its purposes the evasion of the limitations
set forth in this Section 5.01, or (y) to a transaction in which DOC is merged
with or into or consolidated with the Parent Guarantor or the Company.
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company or a Guarantor in accordance with Section 5.01 hereof,
the successor Person formed by such consolidation or into or with which the
Company or any such Guarantor, as the case may be, is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor Person and not to the Company, and the provisions of this
86
Indenture referring to the "Guarantor" shall refer instead to the successor
Person and not to any Guarantor), and may exercise every right and power of the
Company or the Guarantor, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as the Company or a Guarantor,
as the case may be, herein; provided, however, that the predecessor Company or
Guarantor, as the case may be, shall not be relieved from the obligation to pay
or Guarantee, respectively, the principal of and interest on the Notes except in
the case of a sale of all or substantially all of the Company's assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following events constitutes an "Event of
Default":
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise;
(b) default in the payment of interest or Additional Interest,
if any, on any Note when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) default in the performance or breach of the provisions of
Section 5.01, or the failure to make or consummate an Asset Sale Offer
in accordance with Section 4.11, a Change of Control Offer in
accordance with Section 4.15, or a breach of Sections 4.07 and 4.09;
(d) The Company or any Guarantor defaults in the performance
of or breaches any other covenant or agreement of the Company or such
Guarantor in this Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 45 consecutive days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount
of the Notes affected thereby;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Guarantor or any Significant
Subsidiary having an outstanding principal amount of $50.0 million or
more in the aggregate for all such issues of all such Persons, whether
such Indebtedness now exists or shall hereafter be created;
(i) an Event of Default that has caused the holder
thereof to declare such Indebtedness to be due and payable
prior to its final Stated Maturity and such Indebtedness has
not been discharged in full or such acceleration has not been
rescinded or annulled within 45 days of such acceleration;
and/or
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(ii) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 45
days of such payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $50.0 million in the aggregate for
all such final judgments or orders against all such Persons (treating
any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company, any Guarantor or any Significant
Subsidiary and shall not be paid or discharged, and there shall be any
period of 45 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such Persons
to exceed $35.0 million during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for:
(i) relief in respect of the Company, any Guarantor
or any Significant Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect;
(ii) appointment of a receiver, liquidator, assignee,
custodian, Trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company,
any Guarantor or any Significant Subsidiary; or
(iii) the winding up or liquidation of the affairs of
the Company, any Guarantor or any Significant Subsidiary and,
in each case, such decree or order shall remain unstayed and
in effect for a period of 30 consecutive days;
(h) The Company, any Guarantor or any Significant Subsidiary:
(i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or consents to the entry of an order for relief in
an involuntary case under any such law;
(ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian,
Trustee, sequestrator or similar official of the Company, any
Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company,
any Guarantor or any Significant Subsidiary; or
(iii) effects any general assignment for the benefit
of creditors;
(i) any Guarantor repudiates its obligations under its Note
Guarantee or, except as permitted by this Indenture, any Note Guarantee
is determined to be unenforceable or invalid or shall for any reason
cease to be in full force and effect; or
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(j) unless all the Collateral has been released from the
applicable Liens in accordance with the provisions of the Security
Documents, default by the Parent Guarantor, DOC, the Company or any
Restricted Subsidiary in the performance of the Security Documents, or
the occurrence of any event, in each case that adversely affects the
enforceability, validity, perfection or priority of such Liens on a
material portion of the Collateral granted to the Collateral Trustee
for the benefit of the Trustee and the Holders, the repudiation or
disaffirmation by the Parent Guarantor, DOC, the Company or any
Restricted Subsidiary of its material obligations under the Security
Documents or the determination in a judicial proceeding that the
Security Documents are unenforceable or invalid against the Parent
Guarantor, DOC, the Company or any Restricted Subsidiary party thereto
for any reason with respect to a material portion of the Collateral
(which default, occurrence, repudiation, disaffirmation or
determination is not rescinded, stayed or waived by the Persons having
such authority pursuant to the Security Documents or otherwise cured
within 60 days after the Company receives notice thereof specifying
such occurrence from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes affected thereby and
demanding that such default, occurrence, repudiation, disaffirmation or
determination be remedied).
SECTION 6.02. ACCELERATION.
(a) If an Event of Default, other than an Event of Default
specified in Section 6.01(g) or Section 6.01(h) that occurs with respect to the
Company or any Guarantor, occurs and is continuing under the Notes or this
Indenture, the Trustee or the Holders of at least 25% in aggregate principal
amount of such Notes affected thereby then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued interest on such Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal of, premium, if any,
and accrued and unpaid interest and Additional Interest, if any, shall be
immediately due and payable.
(b) In the event of a declaration of acceleration because an
Event of Default set forth in Section 6.01(e) has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to Section
6.01(e) shall be remedied or cured by the Company, the relevant Guarantor or the
relevant Significant Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto.
(c) If an Event of Default specified in Section 6.01(g) or
Section 6.01(h) occurs with respect to the Company or any Guarantor, the
principal of, premium, if any, and accrued and unpaid interest and Additional
Interest, if any, on the Notes then outstanding shall automatically become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
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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, premium,
interest and Additional Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
(a) At any time after declaration of acceleration, but before
a judgment or decree for the payment of the money due has been obtained
by the Trustee, the Holders of at least a majority in principal amount
of the outstanding Notes affected thereby, by written notice to the
Company and to the Trustee, may waive all past defaults and rescind and
annul a declaration of acceleration and its consequences if:
(i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest
on the Notes that have become due solely by such declaration
of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
(b) Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair
any right consequence thereto.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of at least a majority in aggregate principal
amount of the outstanding Notes affected thereby 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 the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
any proceeding that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be prejudicial to the rights of Holders not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from Holders of
Notes affected thereby.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this
Indenture or the Notes, as the case may be, unless:
(a) the Holder gives the Trustee written notice of a
continuing Event of Default;
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(b) the Holders of at least 25% in aggregate principal amount
of outstanding Notes affected thereby make a written request to the
Trustee to pursue the remedy;
(c) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of such outstanding Notes affected thereby
do not give the Trustee a direction that is inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note, it being understood and intended that no one or more
of such Holders will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb, or prejudice
the rights of any other of such Holders (it being further understood that the
Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders).
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, interest
and Additional Interest, if any, on such Note, on or after the respective due
dates expressed in the Note (including in connection with an Asset Sale Offer or
a Change of Control Offer), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is continuing, and subject to the terms of the Intercreditor
Agreement, the Trustee is authorized to recover judgment in its own name and as
Trustee of an express trust against the Company and the Guarantors for the whole
amount of principal of, premium, interest and Additional Interest, if any, on
the remaining unpaid on such Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
Subject to the terms of the Intercreditor Agreement, the
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company, each Guarantor (or any other
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Obligor upon the Notes), their creditors or their property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall, subject to the Intercreditor Agreement, pay out the money in the
following order:
FIRST: To the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
SECOND: To Holders for amounts due and unpaid on the Notes for
principal, premium, interest, and Additional Interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, interest, and Additional Interest, if any,
respectively; and
THIRD: To the Company and the Guarantors or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, 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 does not apply to a suit by the Trustee, a suit
by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
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SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Company, the
Guarantors, the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or wrongfully taken Notes in Section
2.07, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.14. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 6 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
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(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, in the case of certificates or opinions
specifically required by any provision hereof to be furnished to it,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e), (f) and (g) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) The Trustee shall not be charged with notice or knowledge
of any Default or Event of Default (other than an Event of Default under Section
6.01(a) or (b) hereof) unless a Responsible Officer of the Trustee receives at
its Corporate Trust Office written notice thereof.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate in accordance with Sections 13.04 and 13.05 or
an Opinion of Counsel or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel. The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act either directly or by or through its
attorneys and agents and shall not be responsible for any misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture takes or omits to take in
accordance with the written direction of the Holders of a majority in principal
amount of the outstanding Notes affected thereby relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
(i) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
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(j) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
(k) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(l) The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
SECTION 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
Guarantors or any Affiliate of the Company or the Guarantors with the same
rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the Commission for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
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 of principal of, premium, interest
or Additional Interest, if any, on any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 2005,
and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders a brief report dated as of such
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reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as
shall be agreed upon in writing. The Trustee's compensation shall not be limited
by any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall, jointly and severally,
indemnify the Trustee against any and all losses, damages, claims, liabilities
or expenses (including reasonable fees and disbursements of counsel) incurred by
it arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, any
Guarantor or any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, damage, claim, liability or expense or a portion thereof
shall be determined to have been caused by its negligence or willful misconduct.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel.
Neither the Company nor any Guarantor need pay for any settlement made without
its consent, which consent shall not be unreasonably withheld. Neither the
Company nor any Guarantor need reimburse any expense or indemnify against any
loss liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the resignation or removal of the Trustee and the
satisfaction and discharge of this Indenture.
To secure the Company's and the Guarantors' payment
obligations in this Section, the Trustee shall have, and the Company and each
Guarantor hereby grants, a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to
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pay principal, interest and Additional Interest, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(i) or (j) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee; provided, however, that all sums owing to the Trustee
hereunder shall have been paid. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's and the Guarantors' obligations
under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
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 or national banking corporation, the successor Person or national
banking corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate Trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b) provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusions set forth in
TIA Section 310(b) (1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate complying with
Section 13.04 and 13.05 delivered to the Trustee, at any time, elect to have
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and each of the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Notes and Note Guarantees on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
and Note Guarantees, which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (a) and (b) below, and to have satisfied all their other
obligations under such Notes, the Note Guarantees and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as set forth in such Section, payments in respect of
the principal of, premium, if any, and interest and Additional Interest, if any,
on such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Section 4.02 hereof, (c) the Company's
rights of optional redemption under Section 3.07, (d) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith and (e) this Article 8. Subject
to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from its obligations under clauses (c) and (d) of Section 5.01
hereof, the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof, and the operation of clauses
(c) and (d) of Section 6.01 with respect to clauses (c) and (d) of Section 5.01
hereof, with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company and the Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
100
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees shall be unaffected thereby.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The Company may exercise Legal Defeasance or Covenant
Defeasance if:
(a) the Company has irrevocably deposited with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable U.S. Government Securities, or a combination thereof, in
such amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and accrued interest and Additional Interest, if
any, on the outstanding Notes on the Stated Maturity of such payments
in accordance with the terms of the Notes and this Indenture;
(b) the Company has delivered to the Trustee:
(i) either:
(A) an Opinion of Counsel to the effect that
Holders shall not recognize income, gain or loss for
federal income tax purposes as a result of the
Company's exercise of its option under this Article 8
and shall be subject to federal income tax on the
same amount and in the same manner and at the same
times as would have been the case if such deposit,
defeasance and discharge had not occurred, which
opinion of counsel must be based upon (and
accompanied by a copy of) a ruling of the Internal
Revenue Service to the same effect unless there has
been a change in applicable federal income tax law
after the Issue Date such that a ruling is no longer
required; or
(B) a ruling directed to the Trustee
received from the Internal Revenue Service to the
same effect as the aforementioned opinion of counsel;
and
(ii) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the
Investment Company Act of 1940 and after the passage of 93
days following the deposit (except with respect to any trust
funds for the account of any Holder who may be deemed an
"insider" for purposes of the United States Bankruptcy Code,
after one year following the deposit), the trust funds shall
not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law;
101
(c) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which any of the Guarantors, the
Company or any of its Subsidiaries is a party or by which any of the
Guarantors, the Company or any of its Subsidiaries is bound;
(d) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes shall not be delisted
as a result of such deposit, defeasance and discharge; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.04 have been satisfied, in accordance
with Sections 13.04 and 13.05.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
U.S. Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, interest
and Additional Interest, if any, on such Notes but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
U.S. Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable U.S. Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
interest and Additional Interest, if any, on any Note and remaining unclaimed
for two years after such principal, premium,
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interest and Additional Interest, if any, has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as Trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, 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
shall be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable U.S. Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Company makes any payment of principal of, premium, if any, interest, or
Additional Interest, if any, on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture, the Note
Guarantees or the Notes, without the consent of any Holder of such Notes
affected thereby:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to such Holders in the case of a merger,
consolidation or sale of all or substantially all the assets of the
Company, the Parent Guarantor or DOC in compliance with this Indenture;
103
(4) to make any other change that would provide any additional
rights or benefits to the such Holders or that does not adversely
affect the legal rights under this Indenture of any Holder;
(5) to evidence and provide for the acceptance of appointment
by a successor Trustee;
(6) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(7) to comply with the provision described under Section 4.10;
(8) to provide for the issuance of Additional Notes in
accordance with this Indenture; or
(9) to release Collateral from the Liens created by the
Security Documents when permitted by this Indenture and the Security
Documents.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS.
(a) Except as provided below in this Section 9.02, the Company
and the Trustee may amend or supplement this Indenture (including Sections 4.11
and 4.15 hereof) and the Notes and the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of Notes affected thereby, including Additional Notes, if any, then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, such Notes) and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, interest or Additional Interest, if any, on such
Notes, except a payment default resulting solely from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or such Notes
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Notes affected thereby, including Additional Notes, if
any, voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, such Notes).
(b) Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the
104
Trustee shall join with the Company and the Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
(c) It shall not be necessary for the consent of the affected
Holders of Notes 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.
(d) After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes affected
thereby, including Additional Notes, if any, then outstanding voting as a single
class may waive compliance in a particular instance by the Company with any
provision of this Indenture or such Notes. However, without the consent of each
Holder affected, an amendment or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder affected thereby):
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any such Notes;
(ii) reduce the principal amount of, premium, if any, or
interest on, any such Notes;
(iii) change the place or currency of payment of principal of
premium, if any, or interest on, any such Notes;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the redemption date) of any such Notes or any
such Note Guarantees;
(v) change the optional redemption dates or optional
redemption prices of such Notes from that set forth in Section 3.07
hereof;
(vi) amend, change or modify the obligation of the Company to
make and consummate an Asset Sale Offer under Section 4.11 after the
obligation to make such Asset Sale Offer has arisen or the obligation
of the Company to make and consummate an Change of Control Offer under
Section 4.15 after a Change of Control Triggering Event has occurred,
including, in each case, amending, changing or modifying any definition
relating thereto in any material respect;
(vii) reduce the above-stated percentage of outstanding Notes,
the consent of whose Holders affected thereby is necessary to modify or
amend this Indenture,
105
(viii) waive a default in the payment of principal of,
premium, if any, or interest or Additional Interest on, any such Notes;
(ix) release any such Note Guarantee other than pursuant to
the terms of this Indenture;
(x) release all or substantially all of the Collateral from
the Liens created by the Security Documents except as specifically
provided in this Indenture and the Security Documents; or
(xi) reduce the percentage of aggregate principal amount of
outstanding Notes the consent of whose Holders affected thereby is
necessary for waiver of compliance with certain provisions of this
Indenture or for waiver of certain defaults.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be provided with and (subject to Section 7.01 hereof) shall be
fully protected in relying upon, in addition to the documents required by
Section 13.04
106
hereof, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized or permitted
by this Indenture.
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE.
The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Notes on the day of the deposit
referred to below, and the provisions of this Indenture will no longer be in
effect with respect to the Notes (subject to Section 8.07 and as surviving
rights of registration of transfer or exchange of the Notes as expressly
provided, this Indenture) and the Trustee at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when:
(1) the Company has deposited with the Trustee, in trust,
money and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal
of, premium, if any, and accrued interest on the Notes on the Stated
Maturity of such payments in accordance with the terms of this
Indenture and the Notes,
(2) the Company has delivered to the Trustee:
(a) either:
(i) an Opinion of Counsel to the effect that
Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the
Company's exercise of its option under this Section
10.01 and will be subject to federal income tax on
the same amount and in the same manner and at the
same times as would have been the case if such
deposit, defeasance and discharge had not occurred,
which opinion of counsel must be based upon (and
accompanied by a copy of) a ruling of the Internal
Revenue Service to the same effect unless there has
been a change in applicable federal income tax law
after the Issue Date such that a ruling is no longer
required; or
(ii) a ruling directed to the Trustee
received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel;
and
(b) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the
Investment Company Act of 1940 and after the passage of 123
days following the deposit (except with respect to any trust
funds for the account of any holder who may be deemed an
"insider" for purposes of the United States Bankruptcy Code,
after one year following the deposit), the
107
trust funds will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law;
(3) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound; and
(4) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of such deposit, defeasance and discharge.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations under Section 7.07 and 7.10 and, if money shall have
been deposited with the Trustee pursuant to clause (a) of this Section 10.01,
the obligations of the Trustee under Section 10.02 and Section 2.04 shall
survive such satisfaction and discharge.
SECTION 10.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 2.04, all money deposited
with the Trustee pursuant to Section 10.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including any issuer
acting as Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and premium, if any, and interest for whose payment
such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE 11.
GUARANTEE
SECTION 11.01. GUARANTEE.
Subject to this Article 11, each Guarantor hereby fully and
unconditionally guarantees to each Holder of a Note and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that: (a) 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, premium, if any, and
interest on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in the case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be obligated to pay
108
the same immediately. Each Guarantor agrees that this is a guarantee of payment
and not a guarantee of collection.
Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance that might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenant that each Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, these
Note Guarantees, to the extent theretofore discharged, shall be reinstated in
full force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Holders and the Trustee, (x)
the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article 6 for the purposes of these Note Guarantees, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of these Note Guarantees.
SECTION 11.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantees not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of each
Guarantor under the Note Guarantees and this Article 11 shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of the Guarantors that are relevant under such
laws, result in the obligations of such Guarantor under its Note Guarantee to
not constitute a fraudulent transfer or conveyance.
109
SECTION 11.03. EXECUTION AND DELIVERY OF THE NOTE GUARANTEES.
To evidence their Note Guarantees set forth in Section 11.01,
each Guarantor hereby agrees that a notation of such Note Guarantee,
substantially in the form included in the Note annexed hereto as Exhibit A shall
be endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by its President, any Vice President, Secretary or Treasurer.
Each Guarantor hereby agrees that its Note Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on any
Note Guarantees no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantees set forth in this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new
Domestic Restricted Subsidiaries subsequent to the Issue Date, if required by
Section 4.10, the Company shall cause such Domestic Restricted Subsidiaries to
execute supplemental indentures to this Indenture and Note Guarantees in
accordance with this Article 11.
SECTION 11.04. RELEASE OF SUBSIDIARY GUARANTOR.
Any Subsidiary Guarantor shall be automatically and
unconditionally released and discharged of any obligations under its Subsidiary
Guarantee upon (a) any sale, exchange or transfer to any Person (other than an
Affiliate of the Company) of all of the Capital Stock of such Subsidiary
Guarantor or (b) the designation of such Subsidiary Guarantor as an Unrestricted
Subsidiary, in each case in compliance with the terms of this Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate in accordance
with Sections 13.04 and 13.05 and an Opinion of Counsel to the effect that one
of the foregoing requirements has been satisfied and the conditions to the
release of a Subsidiary Guarantor under this Section 11.04 have been met, the
Trustee shall execute any documents reasonably required in order to evidence the
release of such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee.
Any Subsidiary Guarantor not released, in accordance with the
terms of this Indenture, from its obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of, interest, premium, if
any, and liquidated damages, if any, on the Notes and for the other obligations
of any Subsidiary Guarantor under this Indenture as provided in this Article 11.
110
ARTICLE 12.
COLLATERAL AND SECURITY
SECTION 12.01. COLLATERAL DOCUMENTS.
(a) In order to secure the due and punctual payment of the
Note Obligations, the Company and the Guarantors have entered or will enter into
the Security Documents to create security interests to be granted in favor of
the Collateral Trustee for the benefit of the Holders of the Notes in (i) the
Primary Collateral on a first priority basis and (ii) the Other Collateral on a
second priority basis, in accordance with the terms of the Security Documents
and the Intercreditor Agreement. In the event of a conflict between the terms of
this Indenture, the Security Documents and the Intercreditor Agreement, the
Security Documents and the Intercreditor Agreement with respect to the
Collateral shall control.
(b) Each Holder of a Note, Exchange Note or Additional Note,
by accepting such Note, Exchange Note or Additional Note, agrees to all of the
terms and provisions of the Security Documents and the Intercreditor Agreement
and hereby authorizes and directs the Trustee to enter into all such documents.
SECTION 12.02. APPLICATION OF PROCEEDS OF COLLATERAL.
Upon any realization upon the Collateral, the proceeds thereof
shall be applied in accordance with the terms of the Security Documents and the
terms hereof, subject to the terms of the Intercreditor Agreement.
SECTION 12.03. POSSESSION, USE AND RELEASE OF COLLATERAL.
(a) Subject to the terms of the Security Documents and the
Intercreditor Agreement, the Company and the Guarantors will have the right to
remain in possession and retain control of the Collateral (other than as
otherwise set forth in the Security Documents), to freely operate the Collateral
and to collect, invest and dispose of any income therefrom.
(b) The Liens created pursuant to the Security Documents shall
be released in the manner and upon the satisfaction of the conditions set forth
in the Security Documents and the Intercreditor Agreement.
(c) The Collateral Trustee shall execute and deliver to the
Company and the Guarantors, at the Company's sole expense, all documents that
the Company and the Guarantors shall reasonably request to evidence any release
of Collateral described in clause (b) above.
SECTION 12.04. ADDITIONAL COLLATERAL; ACQUISITION OF ASSETS OR
PROPERTY.
(a) Concurrently with the acquisition (including, without
limitation, through the designation, acquisition or creation of a new Restricted
Subsidiary) by DOC, the Company or any Subsidiary Guarantor of any Property
comprising the Collateral hereafter acquired by DOC, the Company or any
Subsidiary Guarantor, DOC or the Company shall, or shall cause such Subsidiary
Guarantor, as the case may be, to, as promptly as practicable, subject to
obtaining the consents contemplated by Section 12.04(b):
(i) execute and deliver to the Collateral Trustee, such
Security Documents and take such other actions as shall be necessary to
create, perfect and protect a security interest in favor of the
Collateral Trustee for the benefit of the Holders on such Property
111
(to the extent permitted by applicable law, in the case of FCC
Licenses, and to the extent otherwise required to be perfected in
accordance with the terms of the Security Documents);
(ii) with respect to any fee interest in any tract (or series
of tracts at the same location) of real property having a Fair Market
Value (together with improvements thereof) of at least $3.0 million
acquired after the Issue Date by DOC, the Company or any Subsidiary
Guarantor, promptly (A) execute and deliver a Mortgage in favor of the
Collateral Trustee, creating a first priority security interest for the
benefit of the Holders of the Notes, covering such real property, and
(B) deliver to the Collateral Trustee title and extended coverage
insurance covering such real property in an amount at least equal to
the purchase price of such real property, with local fixture filings
being made in respect of fixtures associated with such real property as
well as a current ALTA survey thereof, together with a surveyor's
certificate; and
(iii) promptly deliver to the Collateral Trustee such opinions
of counsel, if any, as the Collateral Trustee may reasonably require
with respect to this Section 12.04(a) (including opinions as to
enforceability and perfection of security interests), which opinions
shall be in form and substance, and from counsel, reasonably
satisfactory to such Collateral Trustee.
(b) If the granting or perfection of a security interest in
such property (other than with respect to the FCC Licenses and Authorizations)
requires the consent or agreement of a third party, the Company will use
commercially reasonable efforts to obtain such consent as promptly as
practicable with respect to the Lien for the benefit of the relevant Collateral
Trustee.
SECTION 12.05. TRUST INDENTURE ACT REQUIREMENTS.
(a) The release of any Primary Collateral from the First
Priority Lien and any Other Collateral from the Second Priority Lien of any of
the Security Documents, or the release of, in whole or in part, the First
Priority Liens, in respect of the Primary Collateral, and the Second Priority
Liens, in respect of the Other Collateral, created by any of the Security
Documents, shall not be deemed to impair the security interests in contravention
of the provisions hereof if and to the extent the Collateral or First Priority
Liens or Second Priority Liens, as the case may be, are released in accordance
with the terms hereof or the terms of the Intercreditor Agreement or the
applicable Security Documents.
(b) Each of the Holders of the Notes acknowledge that a
release of Collateral or Liens strictly in accordance with the terms of the
Security Documents, the Intercreditor Agreement and this Indenture will not be
deemed for any purpose to be an impairment of the Security Documents or
otherwise contrary to the terms of this Indenture. To the extent applicable, the
Company and the Guarantors shall cause TIA Section 313(b), relating to reports,
and TIA Section 314(d), relating to the release of property or securities from
the Lien and security interest of the Security Documents and relating to the
substitution therefor of any property or securities to be subjected to the Lien
and security interest of the Security Documents, to be complied with. Any
certificate or opinion required by TIA Section 314(d) may be made by an Officer
of the Company or the relevant Guarantor except in cases where TIA Section
314(d) requires that such certificate or
112
opinion be made by an independent Person, which Person will be an independent
engineer, appraiser or other expert selected or approved by the Trustee in the
exercise of reasonable care.
(c) The Company shall furnish to the Trustee on the
anniversary of the Issue Date in each year, beginning with 2005, an Opinion of
Counsel, dated as of such date, which complies with TIA Section 314(b)(2),
either (i)(x) stating that, in the opinion of such counsel, such action has been
taken with respect to the delivery of Collateral, recordings, registrations,
filings, re-recordings, re-registrations and refilings of this Indenture, the
Security Documents and all supplemental indentures, financing statements,
continuation statements and other instruments of further assurance as are
necessary to maintain the perfected Liens of the Security Documents under
applicable law in those items of Collateral that can be perfected by the filing,
recordings, registrations or delivery and reciting with respect to such Liens on
and security interests in the Collateral the details of such action or referring
to prior Opinions of Counsel in which such details are given, and (y) stating
that, based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements, continuation statements, and other documents
have been executed and filed that are necessary, as of such date and during the
succeeding 12 months, fully to maintain the perfection of the security interests
of the Trustee hereunder and under the Security Documents with respect to the
Collateral; provided that if there is a required filing of a continuation
statement or other instrument within such 12 month period and such continuation
statement or other instrument is not effective if filed at the time of the
opinion, such opinion may so state and in that case the Company shall cause a
continuation statement or other instrument to be timely filed so as to maintain
such Liens and security interests and shall provide a further Opinion of Counsel
to the effect of this clause (i) upon the filing of the relevant continuation
statement or other instrument; or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such Liens or security
interests.
SECTION 12.06. SUITS TO PROTECT THE COLLATERAL.
Subject to the provisions of the Intercreditor Agreement, the
Trustee and the Collateral Trustee shall have the authority to direct, to
institute and to maintain such suits and proceedings as each may deem expedient
to prevent any impairment of the Collateral by any acts which may be unlawful or
in violation of any of the Security Documents or this Indenture, and such suits
and proceedings as the Trustee or the Collateral Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of the Notes
in the Collateral (including suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the First
Priority Liens, in respect of the Primary Collateral, and the Second Priority
Liens, in respect of the Other Collateral, securing the Secured Obligations or
be prejudicial to the interests of the Holders of the Notes).
SECTION 12.07. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE.
Subject to the Security Documents and the Intercreditor
Agreement, in case the Collateral shall be in the possession of a receiver or
trustee, lawfully appointed, the powers conferred in this Article 12 upon the
Company or any Guarantor, as applicable, with respect to the release, sale or
other disposition of such property may be exercised by such receiver or
113
trustee, and an instrument signed by such receiver or trustee shall be deemed
the equivalent of any similar instrument of the Company or any Guarantor, as
applicable, or of any officer or officers thereof required by the provisions of
this Article 12.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 13.02. NOTICES.
Any notice or communication by the Company, the Guarantors or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next-day delivery, to
the others' address.
If to the Company and the Guarantors:
▇▇▇▇▇▇ Cellular Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Mayer, Brown, ▇▇▇▇ & Maw, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Trustee:
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, the Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
114
Except as provided below, all notices and communications
(other than those sent to Holders) shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only
when received, and except as otherwise provided in this Indenture, if a notice
or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the
opinion of the signers, all conditions precedent
115
and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 13.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 13.06. 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 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No recourse for the payment of the principal of, premium, if
any, or interest or Additional Interest, if any, on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company contained in this
Indenture or in any of the Notes, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or past, present or
future director, officer, employee, controlling Person or stockholder of the
Company. Each Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
116
SECTION 13.08. GOVERNING LAW; WAIVER OF JURY TRIAL.
THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES. EACH OF THE COMPANY AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Parent Guarantor, DOC, the Company or
their Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture, in the Notes or in
the Note Guarantees 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 13.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 13.14. FORCE MAJEURE.
In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including,
without limitation strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God,
and
117
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
[Signatures on following page]
118
IN WITNESS WHEREOF, each of the Company and the Guarantors has
caused this Indenture to be duly executed as of the day and year first above
written.
COMPANY:
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.
By:
-----------------------------------
Name:
Title:
GUARANTORS:
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ OPERATING CORPORATION
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇▇ LEASE CO., LLC
By:
-----------------------------------
Name:
Title:
TRUSTEE:
BNY MIDWEST TRUST COMPANY
By:
-----------------------------------
Name:
Title:
EXHIBIT A
(Face of Note)
9 7/8% Second Priority Senior Secured Notes due 2012
CUSIP: [144A - 256067 AD 1]
[Reg S - U2541D AD 2]
No.: $
------
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
_____________ Dollars ($___________) on November 1, 2012.
Interest Payment Dates: May 1 and November 1, commencing May 1, 2005.
Record Dates: April 15 and October 15.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC
-------------------------------------------
By:
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture
BNY MIDWEST TRUST COMPANY
as Trustee
--------------------------------------------
By:
Authorized Signatory
Dated: November 8, 2004
(Back of Note)
9 7/8% Second Priority Senior Secured Notes due 2012
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OR IN ACCORDANCE WITH SECTION 9.05 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] (1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT), OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL
1
NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT
AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE
TRANSFER THIS NOTE, EXCEPT (A) TO ▇▇▇▇▇▇ CELLULAR SYSTEMS, INC. OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO ▇▇▇▇▇▇ CELLULAR SYSTEMS, INC. THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN
RULE 144(K) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES,
THE HOLDER MUST SUBMIT THE CERTIFICATE OF TRANSFER REFERENCED IN THE INDENTURE
TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
▇▇▇▇▇▇ CELLULAR SYSTEMS, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES," AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
----------
(1) Used on Global Note only.
2
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. ▇▇▇▇▇▇ Cellular Systems, Inc., an Oklahoma
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 9.875% per annum until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company shall pay interest and Additional
Interest, if any, semi-annually on May 1 and November 1 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on this Note shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from November 8, 2004; provided, however, that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be May 1, 2005.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay principal,
premium, if any, interest and Additional Interest, if any, on this Note to the
Persons who are registered Holders at the close of business on the April 15 or
October 15 next preceding the interest payment date, even if this Note is
cancelled after such record date and on or before such interest payment date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The principal, premium, if any, and, as provided above, interest and
Additional Interest, if any, on the Notes shall be payable by wire transfer of
immediately available funds to the registered Holder of the relevant Global Note
and, with respect to certificated Notes, by wire transfer of immediately
available funds in accordance with instructions provided by the registered
Holders of certificated Notes or, if no such instructions are specified, by
mailing a check to each such Holder's registered address. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, BNY Midwest Trust
Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of November 8, 2004 (the "Indenture") between the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with
3
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) The Company may redeem the Notes at any time and from time
to time on or after November 1, 2008, at its option, in whole or in part, at a
redemption price equal to the percentage of principal amount set forth below,
plus accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed to the applicable redemption date, if redeemed during the 12-month
period beginning on November 1 of each of the years set forth below:
Year Percentage
---- ----------
2008............................ 104.938%
2009............................ 103.292%
2010............................ 101.646%
2011 and thereafter............. 100.000%
(b) In addition, at any time and from time to time on or prior
to November 1, 2007, the Company may redeem up to 35% of the principal amount of
the Notes at a redemption price equal to 109.875% of their principal amount,
plus accrued and unpaid interest and Additional Interest, if any, on the Notes
redeemed to the redemption date, with the proceeds of one or more sales of its
Capital Stock (other than Disqualified Stock); provided that, in each case, such
redemption date occurs within 180 days after consummation of such sale and at
least 65% aggregate principal amount of the Notes issued on the Issue Date
remains outstanding after each such redemption.
(c) In addition to the foregoing, at any time prior to
November 1, 2008, the Company may also redeem the Notes in whole or in part, at
a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, to, the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date in respect of then outstanding Notes).
6. MANDATORY REDEMPTION.
Except as described below under Sections 4.11 and 4.15 of the
Indenture, the Company shall not be required to make any mandatory redemption
of, sinking fund payments for, or offer to repurchase any Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If a Change of Control Triggering Event occurs, each
Holder shall have the right to require the Company to repurchase all or any part
of such Holder's Notes pursuant to a Change of Control Offer in cash at a price
equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest and Additional Interest, if any, to the repurchase
date. Within 30 days following any Change of Control Triggering Event, the
Company shall mail a notice to each Holder describing the transaction or
transactions that
4
constitute the Change of Control and offering to repurchase Notes on the Change
of Control Payment Date specified in the notice, which date will be no earlier
than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the Indenture and described in such
notice.
(b) The Company shall be required to use the Excess Proceeds
from any Asset Sale under certain circumstances as required in the Indenture to
make an Asset Sale Offer to the Holders of the Notes and the holders of any
Applicable Pari Passu Indebtedness on a pro rata basis, an aggregate principal
amount of the Notes and Applicable Pari Passu Indebtedness, if applicable, equal
to such Excess Proceeds. The repurchase price shall be equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the payment date. The Company shall effect any
Asset Sale Offer in accordance with the procedures set forth in the Indenture.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. On and after the redemption date interest ceases
to accrue on Notes, or portions thereof, called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding interest payment date.
10. COLLATERAL. The Company's obligations under the Notes and
the Indenture are secured by Second Priority Liens on the Primary Collateral and
Third Priority Liens on the Other Collateral in accordance with the terms of the
Security Documents and Article 12 of the Indenture. The rights and remedies of
the Trustee and the Holders of the Notes secured by the Second Priority Liens
and Third Priority Liens are limited by and subject to the terms of the Security
Documents.
11. GUARANTEES. The Notes will be entitled to the benefits of
certain Note Guarantees made for the benefit of the Holders. The respective
rights, limitations of rights, duties and obligations of the Guarantors, the
Trustee and the Holders are set forth in the Indenture.
5
12. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
13. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Security Documents may be amended or
supplemented by the Company, the Guarantors and the Trustee, with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes affected thereby voting as a single class. However, the Indenture or the
Security Documents may only be amended or modified with the consent of each
affected Holder of the Notes: to change the Stated Maturity of the principal of,
or any installment of interest on, any such Notes; to reduce the principal
amount of, premium, if any, or interest on, any such Notes; to change the place
or currency of payment of principal or premium, if any, or interest on, any such
Notes; to impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity (or, in the case of a redemption, on or after
the redemption date) of any such Notes or any Note Guarantee; to change the
optional redemption dates or optional redemption prices of such Notes from that
stated under Section 3.07 of the Indenture; to amend, change or modify the
obligation of the Company to make and consummate an Asset Sale Offer under
Section 4.11 of the Indenture after the obligation to make such Asset Sale Offer
has arisen or the obligation of the Company to make and consummate an Offer to
Purchase under Section 4.15 of the Indenture after a Change of Control
Triggering Event has occurred, including, in each case, amending, changing or
modifying any definition relating thereto in any material respect; reduce the
above-stated percentage of such outstanding Notes the consent of whose Holders
affected thereby is necessary to modify or amend the Indenture; to waive a
default in the payment of principal of, premium, if any, or interest or
Additional Interest on, such Notes; to release any Note Guarantee other than
pursuant to the terms of the Indenture; to release all or substantially all of
the Collateral from the Liens created by the Security Documents except as
specifically provided by the Indenture and the Security Documents; or to reduce
the percentage of aggregate principal amount of such outstanding Notes the
consent of whose Holders affected thereby is necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults.
Without the consent of any Holder of Notes affected thereby, the Indenture or
the Notes affected thereby may be amended or supplemented to cure any ambiguity,
defect or inconsistency; to provide for uncertificated Notes in addition to or
in place of certificated Notes; to provide for the assumption of the Company's
or a Guarantor's obligations to such Holders in the case of a merger,
consolidation or sale of all or substantially all the assets of the Company, the
Parent Guarantor or DOC in compliance with the Indenture; to make any other
change that would provide any additional rights or benefits to such Holders or
that does not adversely affect the legal rights under the Indenture of any
Holder; to evidence and provide for the acceptance of appointment by a successor
trustee; to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act of
1939; to comply with the provisions of Section 4.10 of the Indenture; to provide
for the issuance of additional Notes in accordance with the Indenture; and to
release Collateral from the Liens under the Indenture and the Security Documents
when permitted by the Indenture and the Security Documents.
14. DEFAULTS AND REMEDIES. Events of Default include, in
summary form: (a) default in payment when due of the principal of or premium, if
any, on the Notes; (b) default for 30 days in the payment when due of interest
or Additional Interest, if any, on the Notes; (c) default in the performance of
the provisions of Section 5.01 of the Indenture or failure
6
to make or consummate an Asset Sale Offer or Change of Control Offer in
accordance with Sections 4.11 and 4.15 of the Indenture or a breach of Sections
4.07 and 4.09 of the Indenture; (d) default for 45 days after notice in the
performance of or breach of any other covenant or agreement of the Company and
the Guarantors (other than a default specified in clause (a), (b) or (c) above);
(e) the nonpayment within a 45 days grace period after the final maturity, or
the acceleration by the Holders because of a default continuing after a 45 days
grace period following such acceleration, of Indebtedness of the Company, any
Guarantor or any Significant Subsidiary, and the total amount of such
Indebtedness unpaid or accelerated exceeds $50.0 million; (f) failure by the
Company, any Guarantor or any Significant Subsidiaries to pay final judgments
(not covered by insurance) aggregating in excess of $50.0 million, which
judgments are not paid, discharged or stayed for a period of 45 consecutive
days; (g) certain events of bankruptcy or insolvency with respect to the
Company, any Guarantor or any Significant Subsidiaries; (h) any Guarantor
repudiates its obligation under its Note Guarantee or, except as permitted by
the Indenture, any Note Guarantee is determined to be unenforceable or invalid
or for any reason ceases to be in full force and effect; and (i) with respect to
each of the Company, the Parent Guarantor, DOC or any Restricted Subsidiaries:
default in the performance of the Security Documents, the occurrence of any
event affecting the validity, perfection or priority of the Liens on a material
portion of the Collateral, the repudiation of its material obligations under the
Security Documents, or the determination in a judicial proceeding that the
Security Documents are unenforceable against it, if such default, occurrence,
repudiation or determination is not waived or cured within 60 days after notice
thereof. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes
affected thereby may declare all the Notes to be due and payable, subject to
certain conditions. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes shall become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate 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 notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes affected thereby then outstanding by notice to the
Trustee may on behalf of the Holders waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest and premium, if any, on, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
15. DEFEASANCE. The Indenture and the obligations under the
Notes may be defeased (subject to certain exceptions) or the Company may cease
to comply with certain covenants of the Indenture, upon satisfaction of the
conditions specified in Article 8 of the Indenture.
16. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services
7
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
17. NO RECOURSE AGAINST OTHERS. No recourse for the payment of
the principal of, premium, if any, or interest or Additional Interest, if any,
on any of the Notes, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company or any Guarantor contained in the Indenture or in any of the Notes,
or because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator or past, present or future director, officer, employee,
controlling Person or stockholder of the Company or any Guarantor. Each Holder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
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. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of November 8, 2004, between the Company, the Guarantors and
the parties named on the signature pages thereof (the "Registration Rights
Agreement").
21. CUSIP AND ISIN NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP and ISIN numbers to be printed on the Notes and the
Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
▇▇▇▇▇▇ Cellular Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________________________ to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
--------------------------------------------------------------------------------
Date:
Your Signature:
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
---------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.11 or 4.15 of the Indenture, check the box below:
[ ] Section 4.11 [ ] Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.11 or Section 4.15 of the Indenture, state
the amount you elect to have purchased: $____________
Date:
Your Signature:
(Sign exactly as your name appears
on the Note)
Signature Guarantee:
-------------------
Tax Identification No:
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase this Global Note authorized officer
in Principal Amount in Principal Amount following such decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ----------------------- ------------------
NOTE GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and
the payment or performance of all other obligations of the Company under the
Indenture or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
11 of the Indenture and this Note Guarantee. This Note Guarantee will become
effective in accordance with Article 11 of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Note Guarantee shall
not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of November 8, 2004, among
▇▇▇▇▇▇ Cellular Systems, Inc., an Oklahoma corporation, ▇▇▇▇▇▇ Communications
Corporation, ▇▇▇▇▇▇ Operating Co., LLC, a subsidiary of the Parent Guarantor and
a Guarantor, the Initial Subsidiary Guarantors (as defined therein) and BNY
Midwest Trust Company, as trustee (the "Trustee"), as amended or supplemented
(the "Indenture").
The obligations of the undersigned to the Holders of Notes and
to the Trustee pursuant to this Note Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Note Guarantee and all of the other
provisions of the Indenture to which this Note Guarantee relates.
THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS
NOTE GUARANTEE. Each Guarantor hereby agrees to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Note Guarantee.
This Note Guarantee is subject to release upon the terms set
forth in the Indenture.
IN WITNESS WHEREOF, each Guarantor has caused its Note
Guarantee to be duly executed.
Date:
------------------- -----------------------------------
[NAME OF GUARANTOR],
as Guarantor
By:
-------------------------------
Name:
Title:
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇▇ Cellular Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Re: 9 7/8% Second Priority Senior Secured Notes due 2012 of ▇▇▇▇▇▇ Cellular
Systems, Inc.
Reference is hereby made to the Indenture, dated as of
November 8, 2004 (the "Indenture"), between ▇▇▇▇▇▇ Cellular Systems, Inc. as
issuer (the "Company"), named therein and BNY Midwest Trust Company, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $__________ in such Note[s] or interests (the
"Transfer"), to ___________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee shall take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933 (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note or the Definitive Note and in the
Indenture and the Securities Act.
2. [ ] Check if Transferee shall take delivery of a beneficial interest in the
Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
3. [ ] Check and complete if Transferee shall take delivery of a Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture, and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or
2
Definitive Note shall be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Definitive Notes and in the
Indenture and the Securities Act.
4. [ ] Check if Transferee shall take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note shall no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note shall not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP), or
(ii) [ ] Regulation S Global Note (CUSIP ), or
(iii) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
(ii) [ ] Regulation S Global Note (CUSIP), or
(iii) [ ] Unrestricted Global Note (CUSIP); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇▇ Cellular Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Re: 9 7/8% Second Priority Senior Secured Notes due 2012 of ▇▇▇▇▇▇ Cellular
Systems, Inc.
(CUSIP __________)
Reference is hereby made to the Indenture, dated as of
November 8, 2004 (the "Indenture"), among ▇▇▇▇▇▇ Cellular Systems, Inc., an
Oklahoma corporation, as issuer (the "Company"), ▇▇▇▇▇▇ Communications
Corporation, ▇▇▇▇▇▇ Operating Co., LLC, a subsidiary of the Parent Guarantor and
a Guarantor, the Initial Subsidiary Guarantors (as defined therein) and BNY
Midwest Trust Company, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
_____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933 (the "Securities Act"), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(c) [ ] Check if Exchange is from Restricted Definitive Note
to beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] Check if Exchange is from Restricted Definitive Note
to Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE]:
[ ] 144A Global Note,
[ ] Regulation S Global Note,
2
with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
------------------------------
[Insert Name of Owner]
By:
--------------------------------
Name:
Title:
Dated: ,
----------- ----
3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 9 7/8% Second Priority Senior Secured Notes due 2012 of ▇▇▇▇▇▇ Cellular
Systems, Inc.
Reference is hereby made to the Indenture, dated as of
November 8, 2004 (the "Indenture"), among ▇▇▇▇▇▇ Cellular Systems, Inc., an
Oklahoma corporation, as issuer (the "Company"), ▇▇▇▇▇▇ Communications
Corporation, ▇▇▇▇▇▇ Operating Co., LLC, a subsidiary of the Parent Guarantor and
a Guarantor, the Initial Subsidiary Guarantors (as defined therein) and BNY
Midwest Trust Company, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $___________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter, (D) outside
the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated:
2
SCHEDULE I
DEFINED TERMS AS SET FORTH IN ▇▇▇▇▇▇ CREDIT AGREEMENT
"ACC": American Cellular Corporation, a Delaware corporation.
"Administration Agent": ▇▇▇▇▇▇ Commercial Paper Inc.
"Agents": the collective reference to the Administrative
Agent, the Arrangers, the Syndication Agent and the Co-Arranger and
Documentation Agent.
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Arrangers": ▇▇▇▇▇▇ Commercial Paper Inc., ▇▇▇▇▇▇ Brothers
Inc. and Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 7.5 of the ▇▇▇▇▇▇ Credit Agreement), which
yields gross proceeds to DOC or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at Fair Market Value in the case of other
non-cash proceeds, but in any event excluding the Fair Market Value of any
Cellular/PCS Assets received pursuant to a Permitted Asset Swap or other
Disposition) which (i) when aggregated with the gross proceeds from all such
Dispositions consummated in the same fiscal year of DOC exceed $5,000,000 (but
only to the extent that they exceed $5,000,000) and (ii) for any single
Disposition or series of related Dispositions (in excess of the aggregate amount
referred to in clause (i)) are equal to or greater than $50,000.
"Authorizations": (i) all material filings, recordings, and
registrations with, and all material validations or exemptions, approvals,
orders, authorizations, consents, franchises, licenses, certificates, and
permits from, any Governmental Authority (other than the FCC and applicable
PUCs), including without limitation, any of the foregoing authorizing or
permitting the acquisition, construction, or operation of any System and (ii)
all material filings, recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents, franchises, licenses,
certificates, and permits from, the FCC and any applicable PUCs, including
authorizing or permitting the acquisition, construction, or operation of any
System.
"Available Revolving Credit Commitment": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; provided that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Credit Commitment pursuant to
Section 2.9(a) of the ▇▇▇▇▇▇ Credit Agreement, the aggregate principal amount of
Swing Line Loans then outstanding shall be deemed to be zero.
"Borrower": ▇▇▇▇▇▇ CELLULAR SYSTEMS, INC., an Oklahoma
corporation.
"Business Day": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of the ▇▇▇▇▇▇ Credit Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing,
including the Parent Preferred Stock.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by S&P or P-2 by Moody's, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the
2
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b)
of this definition; and (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
"Cellular/PCS Assets": any Cellular Systems, PCS Systems or
Franchise Interest owned directly or indirectly by any Person and used in
connection with such Person's Cellular Business.
"Cellular Business": the business of owning or operating one
or more Cellular Systems and other business directly related thereto.
"Cellular Entity": any Cellular Licensee or Cellular
Permittee.
"Cellular Licensee": any Person that is authorized to own,
control, and operate a Cellular System.
"Cellular Permittee": means a Person that is authorized by the
FCC to construct a Cellular System.
"Cellular Partnership": any entity in which DOC or any of its
Subsidiaries owns, directly or indirectly, a partnership interest.
"Cellular System": a public mobile services, cellular radio
telephone service telecommunications system licensed under Part 22 of the rules
promulgated by the FCC.
"Closing Date": the date on which the conditions precedent set
forth in Section 5.1 of the ▇▇▇▇▇▇ Credit Agreement shall have been satisfied,
which date shall be not later than October 31, 2003.
"Co-Arranger and Documentation Agent": ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": with respect to any Lender, each of the Term
Loan Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Communications Act": collectively, the Federal Communications
Act of 1934, as amended from time to time, and the rules and regulations in
effect at any time thereunder.
"Communications Regulatory Authority": the FCC and each PUC.
"Consolidated Current Assets": of any Person at any date, all
amounts (other than cash and Cash Equivalents) that would, in conformity with
GAAP, be set forth opposite the
3
caption "total current assets" (or any like caption) on a consolidated balance
sheet of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities": of any Person at any date,
all amounts that would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a consolidated
balance sheet of such Person and its Subsidiaries at such date, but excluding,
with respect to DOC, (a) the current portion of any Funded Debt of DOC and its
Subsidiaries and (b), without duplication, all Indebtedness consisting of
Revolving Credit Loans or Swing Line Loans, to the extent otherwise included
therein.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such period
plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) Consolidated Interest Expense of such Person and its
Subsidiaries, amortization or writeoff of debt discount and debt issuance costs
and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill) and organization costs,
(e) any extraordinary losses determined in accordance with GAAP (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside of
the ordinary course of business) and (f) any other non-recurring non-cash
charges for such period (provided that any cash expenditures made in respect of
any such non-cash charges added-back pursuant to this clause (f) shall be
deducted for the purposes of determining Consolidated EBITDA for the period
during which such cash expenditures are made), and minus, to the extent included
in the statement of such Consolidated Net Income for such period, the sum of (i)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), (ii) any extraordinary gains determined in accordance with
GAAP (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (iii) any other non-cash
income, all as determined on a consolidated basis; provided that in determining
Consolidated EBITDA for the Parent, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Consolidated Interest Expense": of any Person for any period,
total cash interest expense (including that attributable to Capital Lease
Obligations) of such Person and its Subsidiaries for such period with respect to
all outstanding Indebtedness of such Person and its Subsidiaries (including all
commissions, discounts and other fees and charges owed by such Person with
respect to letters of credit and bankers' acceptance financing and net costs of
such Person under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with GAAP); provided
that in determining Consolidated Interest Expense with respect to the Parent,
none of the Unrestricted Group shall be included as a Subsidiary of the Parent
in the foregoing calculations.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided
that in calculating Consolidated Net Income of such Person and its consolidated
Subsidiaries for any period, there shall be excluded
4
(a) the income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of such Person or is merged into or consolidated with such Person, as
applicable, or any of its Subsidiaries, (b) the income (or deficit) of any other
Person (other than a Subsidiary of such Person) in which the Person for which
Consolidated Net Income is being determined, or any of its Subsidiaries, has an
ownership interest, except to the extent that any such income is actually
received by it in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary; provided that in determining Consolidated Net Income with respect to
the Parent, none of the Unrestricted Group shall be included as a Subsidiary of
the Parent in the foregoing calculations.
"Consolidated Total Debt": of any Person, at any date, the
aggregate principal amount of all Indebtedness (but not any preferred stock) of
such Person and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP; provided that in determining Consolidated Total
Debt with respect to the Parent, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Consolidated Working Capital": at any date, the difference of
(a) Consolidated Current Assets of DOC on such date less (b) Consolidated
Current Liabilities of DOC on such date.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Section 9 of the
▇▇▇▇▇▇ Credit Agreement, whether or not any requirement specified therein with
respect to such event for the giving of notice, the lapse of time, or both, has
been satisfied.
"Derivatives Counterparty": as defined in Section 7.6 of the
▇▇▇▇▇▇ Credit Agreement.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
meanings.
"▇▇▇▇▇▇ Credit Agreement": that certain Credit Agreement,
dated as of October 23, 2003 and amended by Amendment No. 1, dated as of March
19, 2004, and Amendment No. 2, dated as of May 7, 2004, among the Company as
borrower, the Parent Guarantor and DOC as guarantors, the several banks and
other financial institutions or entities from time to time party thereto as
"Lenders", ▇▇▇▇▇▇ Commercial Paper Inc., as administrative agent for the
Lenders, ▇▇▇▇▇▇ Brothers Inc. and Bear, ▇▇▇▇▇▇▇ & Co. Inc., as joint lead
arrangers and joint book runners, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. as
syndication agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as co-arranger and
documentation agent, as in effect immediately prior to the
5
November 8, 2004 and prior to the effectiveness of any amendment thereto on the
November 8, 2004.
"DOC": ▇▇▇▇▇▇ Operating Co., L.L.C., an Oklahoma limited
liability company.
"DOC Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of DOC for such period minus the aggregate amount
actually paid by DOC in cash during such period on account of Capital
Expenditures to (b) Consolidated Fixed Charges for such period; provided that:
(x) Capital Expenditures made in cash in the following periods for the GSM
build-out by DOC and its Subsidiaries shall not be included as Capital
Expenditures in calculating the DOC Fixed Charge Coverage Ratio up to the
following respective amounts (without duplication) for the four fiscal quarter
periods of DOC ending on the following dates: (i) December 31, 2003,
$75,000,000, (ii) March 31, 2004, $95,000,000, (iii) June 30, 2004, $80,000,000,
(iv) September 30, 2004, $70,000,000, (v) December 31, 2004, $34,000,000, (vi)
March 31, 2005, $20,000,000 and (vii) June 30, 2005, $5,000,000; (y) Capital
Expenditures made in cash to upgrade, enhance, equip, build out (including the
removal of assets included in the current network) or otherwise improve
properties acquired as part of any Permitted Acquisition by DOC and its
Subsidiaries during the period of twelve months following the consummation of
such Permitted Acquisition shall not be included as Capital Expenditures in
calculating the DOC Fixed Charge Coverage Ratio but only to the extent that the
aggregate amount of such Capital Expenditures (in connection with all Permitted
Acquisitions) during the period of four full fiscal quarters ending on the last
day of any measurement period does not exceed $35,000,000; and (z) Capital
Expenditures made in cash to comply with "enhanced 911" regulatory requirements
in the following periods by DOC and its Subsidiaries shall not be included as
Capital Expenditures in calculating the DOC Fixed Charge Coverage Ratio up to
the following respective amounts (without duplication) for the four fiscal
quarter periods of DOC ending on the following dates: (i) March 31, 2005,
$8,000,000, (ii) June 30, 2005, $17,000,000, (iii) September 30, 2005,
$28,000,000, (iv) December 31, 2005, $39,000,000, (v) March 31, 2006,
$33,000,000, (vi) June 30, 2006, $24,000,000 and (vii) September 30, 2006,
$12,000,000.
"DOC Leverage Ratio": as at the last day of any period of four
consecutive fiscal quarters of DOC, the ratio of (a) Consolidated Total Debt of
DOC (excluding any Indebtedness of DOC and its Subsidiaries which is owed to the
Parent or any of its Subsidiaries and which (i) is subordinated to the payment
in full of the Obligations, (ii) does not require any payment, including of
interest, in cash at any time prior to the payment in full of the Term Loans and
(iii) is on terms acceptable to the Administrative Agent) on such day to (b)
Consolidated EBITDA of DOC for such period; provided that for purposes of
calculating Consolidated EBITDA of DOC for any period, (i) the Consolidated
EBITDA of any Person acquired by DOC or its Subsidiaries during such period
shall be included on a pro forma basis for such period (assuming the
consummation of such acquisition occurred on the first day of such period) if
the consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated EBITDA
is to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent
6
and (ii) the Consolidated EBITDA of any Person Disposed of by DOC or its
Subsidiaries during such period shall be excluded for such period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period).
"Dollars" or "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary organized under the laws
of any jurisdiction within the United States of America.
"Eurodollar Loans": Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9
of the ▇▇▇▇▇▇ Credit Agreement, provided that any requirement specified therein
with respect to such event in for the giving of notice, the lapse of time, or
both (if applicable), has been satisfied.
"Excess Cash Flow": for any fiscal year of DOC, the
difference, if any, by which (a) the sum, without duplication, of (i)
Consolidated EBITDA of DOC for such fiscal year and (ii) the amount of the
decrease, if any, in Consolidated Working Capital for such fiscal year (other
than any such decrease to the extent that it is solely attributable to Permitted
Acquisitions, Permitted Asset Swaps and Dispositions consummated during such
fiscal year) exceeds (b) the sum, without duplication, of (i) the aggregate
amount of capital expenditures (as determined in accordance with GAAP) by DOC
and its Subsidiaries during such fiscal year (provided that the cash amount of
such capital expenditures shall exclude the principal amount of purchase-money
Indebtedness and Capital Lease Obligations incurred in connection therewith or
financed with the proceeds of any Reinvestment Deferred Amount during such
fiscal year), (ii) Consolidated Interest Expense of DOC and commissions,
discounts and other fees and charges associated with Indebtedness to the extent
paid in cash during such fiscal year, (iii) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term Loans)
of DOC and its Subsidiaries made during such fiscal year (other than in respect
of any revolving credit facility (including the Revolving Credit Facility) to
the extent there is not an equivalent permanent reduction in commitments
thereunder), (iv) the amount of the increase, if any, in Consolidated Working
Capital for such fiscal year (other than any such increase to the extent that it
is solely attributable to Permitted Acquisitions, Permitted Asset Swaps and
Dispositions consummated during such fiscal year), (v) the amount of Taxes of
DOC and its Subsidiaries paid by them in cash during such fiscal year, (vi) any
cash payments made by DOC or its Subsidiaries during such fiscal year which were
added to Consolidated Net Income of DOC for the purposes of determining
Consolidated EBITDA of DOC pursuant to clause (e) of the definition thereof
7
and (vii) (to the extent not already deducted pursuant to any of the foregoing
items (i) through (vi)) the amount of Restricted Payments made during such
fiscal year in cash by DOC to the Parent pursuant to Sections
7.6(c)(i),(ii),(iii) and (iv); provided that for all purposes of this Agreement
with respect to the fiscal year of DOC ended December 31, 2003, Excess Cash Flow
for such fiscal year shall only be calculated with respect to the period from
September 30, 2003 to December 31, 2003).
"Excluded Collateral": means any Excluded Assets, as defined
in the Guarantee and Collateral Agreement, to the extent that such Property is
of a type which is excluded from the security interests granted pursuant to the
Guarantee and Collateral Agreement.
"Existing Parent Senior Notes": each of (a) the 10.875% senior
notes due 2010 issued by the Parent pursuant to an Indenture dated as of June
22, 2000 and (b) the 11.75% senior notes due 2007 issued by the Parent pursuant
to an Indenture dated as of February 28, 1997.
"Facility": each of (a) the Term Loan Commitments and the Term
Loans made thereunder and (b) the Revolving Credit Commitments and the
extensions of credit made thereunder.
"Fair Market Value": (a) with respect to any asset or group of
assets (other than a marketable security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the Borrower or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal and (b) with respect to any
marketable security at any date, the closing sale price of such Security on the
Business Day next preceding such date, as appearing in any published list of any
national securities exchange or the NASDAQ Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing regularly dealing in securities of such type and selected by
the Administrative Agent.
"FCC": the Federal Communications Commission and any successor
regulatory body.
"Franchise Interest": any direct or indirect ownership in any
Person that is a Cellular Entity.
"Funded Debt": with respect to any Person, all Indebtedness of
such Person of the types described in clauses (a) through (e) of the definition
of "Indebtedness" below.
"GAAP": generally accepted accounting principles in the United
States of America as in effect on the Closing Date of the ▇▇▇▇▇▇ Credit
Agreement.
8
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Loan Parties
substantially in the form of Exhibit A to the ▇▇▇▇▇▇ Credit Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit), if to induce the creation of
such obligation of such other Person the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guarantors": the collective reference to the Parent, DOC, the
Subsidiary Guarantors and each other Restricted Subsidiary (other than any
Cellular Partnership).
"Hedge Agreements": all interest rate or currency swaps, caps
or collar agreements, foreign exchange agreements, commodity contracts or
similar arrangements entered into by the Parent, DOC or its Subsidiaries
providing for protection against fluctuations in interest rates, currency
exchange rates, commodity prices or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
9
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above; (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on Property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation and (j) for the purposes of
Section 9(e) of the ▇▇▇▇▇▇ Credit Agreement only, all obligations of such Person
in respect of Hedge Agreements.
"Indentures": the New Parent Senior Notes Indenture and each
other indenture entered into by the Parent with respect to the Parent Notes, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.8 of the ▇▇▇▇▇▇ Credit Agreement.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day; (2) any Interest Period that would otherwise
extend beyond the Revolving Credit Termination Date or beyond the date final
payment is due on the Term Loans shall end on the Revolving Credit Termination
Date or such due date, as applicable; and (3) any Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period.
"Issuing Lender": National City Bank and any other Revolving
Credit Lender from time to time designated by the Borrower as an Issuing Lender
with the consent of such Revolving Credit Lender and the Administrative Agent.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the
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aggregate amount of drawings under Letters of Credit that have not then been
reimbursed pursuant to Section 3.5 of the ▇▇▇▇▇▇ Credit Agreement.
"Lender Addendum": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit J of the ▇▇▇▇▇▇ Credit
Agreement, to be executed and delivered by such Lender on the Closing Date as
provided in Section 11.17 of the ▇▇▇▇▇▇ Credit Agreement.
"Lenders": the several banks and other financial institutions
or entities from time to time parties to the ▇▇▇▇▇▇ Credit Agreement.
"Letters of Credit": as defined in Section 3.1(a) of the
▇▇▇▇▇▇ Credit Agreement.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Liquidity": means at any time, the Revolving Credit
Availability plus the aggregate amount of all cash and Cash Equivalents held by
DOC, the Borrower and each Subsidiary Guarantor at such time.
"Loan": any loan made by any Lender pursuant to the ▇▇▇▇▇▇
Credit Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications, any fee letter entered into among any Loan Party and the Agents
with respect to the Facilities and the Notes.
"Loan Parties": The Borrower and each Guarantor.
"Merger": the merger of (i) ▇▇▇▇▇▇/Sygnet, SWI and Sygnet
Communications Inc. into and with the Borrower pursuant to which the Borrower is
the surviving entity and (ii) Sygnet Lease Co., LLC into and with DOC Lease Co.,
LLC pursuant to which DOC Lease Co., LLC is the surviving entity.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Secured Parties, in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
11
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred in
connection therewith and net of Taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available Tax credits or
deductions and any Tax sharing or allocation arrangements), (b) in connection
with any issuance or sale of equity securities or debt securities or instruments
or the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith and (c) in connection with any
Purchase Price Refund, the cash amount thereof, net of any expenses incurred in
the collection thereof.
"New Parent Senior Notes": the 8.875% senior notes due 2013
issued by the Parent pursuant to the New Parent Senior Notes Indenture.
"New Parent Senior Notes Indenture": the indenture, dated as
of September 26, 2003, entered into by the Parent in connection with the
issuance of the New Parent Senior Notes, together with all instruments and other
agreements entered into by the Parent in connection therewith, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with Section 7.8 of the ▇▇▇▇▇▇ Credit Agreement.
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise; provided that (i) obligations of DOC or any of its
Subsidiaries under any Specified Hedge Agreement shall be secured and guaranteed
pursuant to the Security Documents only to the extent that, and for so long as,
the other Obligations are so secured and guaranteed and (ii) any release of
Collateral or Guarantors effected in the manner permitted by this Agreement
shall not require the consent of holders of obligations under Specified Hedge
Agreements.
"Parent": ▇▇▇▇▇▇ Communications Corporation, an Oklahoma
corporation.
"Parent 12.25% Senior Exchangeable Preferred Stock": the
12.25% senior exchangeable preferred stock of the Parent due 2008, to be
redeemed in part pursuant to the Transactions.
12
"Parent 13% Senior Exchangeable Preferred Stock": the 13%
senior exchangeable preferred stock of the Parent due 2009.
"Parent Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA of the Parent for such period to (b) Consolidated
Interest Expense of the Parent for such period; provided that in determining the
Parent Interest Coverage Ratio with respect to the Parent, none of the
Unrestricted Group shall be included as a Subsidiary of the Parent in the
foregoing calculations.
"Parent Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters of the Parent, the ratio of (a) Consolidated
Total Debt of the Parent (excluding any Indebtedness of DOC or any of its
Subsidiaries which is owed to the Parent or any of its Subsidiaries and which
(i) is subordinated to the payment in full of the Obligations, (ii) does not
require any payment, including of interest, in cash at any time prior to the
payment in full of the Term Loans and (iii) is on terms acceptable to the
Administrative Agent) on such day to (b) Consolidated EBITDA of the Parent for
such period; provided that for purposes of calculating Consolidated EBITDA of
the Parent for any period, (i) the Consolidated EBITDA of any Person acquired by
the Parent or any of its Subsidiaries during such period shall be included on a
pro forma basis for such period (assuming the consummation of such acquisition
occurred on the first day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related consolidated
statements of income and stockholders' equity and of cash flows for the period
in respect of which Consolidated EBITDA is to be calculated (x) have been
previously provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally recognized
standing or (2) have been found acceptable by the Administrative Agent and (ii)
the Consolidated EBITDA of any Person Disposed of by the Parent or any of its
Subsidiaries during such period shall be excluded for such period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period); provided that in
determining the Parent Leverage Ratio, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Parent Notes": collectively, the Existing Parent Senior
Notes, the New Parent Senior Notes and any other senior unsecured Indebtedness
for borrowed money issued by the Parent in accordance with this Agreement.
"Parent Preferred Stock": the Parent 12.25% Senior
Exchangeable Preferred Stock, the Parent 13% Senior Exchangeable Preferred Stock
and the Parent Series F Convertible Preferred Stock.
"Parent Series F Convertible Preferred Stock": the Series F
convertible preferred stock of the Parent.
"PCS Systems": the wireless cellular telecommunication systems
offering "Personal Communication Services" authorized under Part 24 of the FCC
Rules (47 C.F.R. Sections 24.1 et seq.).
13
"Permitted Acquisition": any acquisition of all or
substantially all of the assets of, or Capital Stock of, a Person if immediately
before and after giving effect thereto: (a) no Default shall have occurred and
be continuing or could reasonably be expected to result therefrom, (b) all
transactions related thereto shall be consummated without material contravention
of any applicable Requirements of Law and Authorizations, (c) 90% of the Capital
Stock of any acquired or newly formed corporation, partnership, association or
other business entity is owned directly by the Borrower, DOC or any of its
Wholly Owned Subsidiaries (which is a Domestic Subsidiary) and all actions
required to be taken, if any, with respect to such acquired or newly formed
Subsidiary under Section 6.10 shall have been taken, (d) the Administrative
Agent shall have approved (such approval not to be unreasonably withheld or
delayed) the respective amounts of each such acquired Person's or business's
actual and contingent liabilities to the extent that such liabilities would be
recourse to DOC and its Subsidiaries, (e) such acquisition shall have been
approved and recommended by the board of directors or equivalent governing body
of the Person to be acquired or from which such assets are to be acquired and
such approval and recommendation has not been withdrawn, (f) not less than 14
days prior to the consummation thereof, the Borrower shall have delivered to the
Administrative Agent and the Lenders a pro forma income statement and balance
sheet for DOC and its Subsidiaries (after giving effect to such acquisition) and
an officer's certificate certifying compliance with each of the foregoing and
containing all information necessary for determining such compliance, together
with all relevant financial statements, projections and information, in each
case, satisfactory to the Administrative Agent, (g) each material Authorization
issued by any Communications Regulatory Authority to be acquired in connection
with such acquisition shall be valid, binding, enforceable, and subsisting
without any defaults (except defaults which could not reasonably be expected to
result in the termination, revocation or non-renewal of such Authorization)
thereunder or enforceable materially adverse limitations thereon and shall not
be subject to any proceedings or claims (except proceedings or claims which
could not reasonably be expected to result in the termination, revocation or
non-renewal of such Authorization) opposing the issuance, development, or use
thereof or contesting the validity thereof unless the acquiring Person has
entered into an agreement with the seller of such Authorization protecting such
Person from such adverse limitations, proceedings, or claims, which agreement
shall be on terms and conditions, and from a Person whose credit is,
satisfactory to Administrative Agent, (h) as of the closing of such acquisition,
after giving effect thereto, the acquiring Person shall be Solvent and the
Parent, the Borrower and DOC, each on a consolidated basis, shall each be
Solvent and (i) to the extent that DOC or its Subsidiaries will make any
Supplemental Capital Expenditures in connection with such acquisition, the
Required Lenders shall have consented to such Supplemental Capital Expenditures.
"Permitted Asset Swap": A Disposition of Cellular/PCS Assets
owned by DOC or any of its Subsidiaries that satisfies each of the following
conditions: (a) such Disposition shall be in substantially contemporaneous
exchange for the acquisition of other Cellular/PCS Assets, (b) such acquisition
of other Cellular/PCS Assets shall be a Permitted Acquisition, (c) immediately
prior to and after giving effect to the Disposition of such Cellular/PCS Assets
and acquisition of other Cellular/PCS Assets, no Default or Event of Default
shall have occurred and be continuing or could reasonably be expected to result
therefrom, (d) the consideration received for such Disposition shall be at least
equal to the Fair Market Value of the Cellular/PCS Assets Disposed of, (e) any
cash consideration received, after giving effect to such Disposition and
substantially contemporaneous acquisition, shall not exceed 50% of the aggregate
consideration
14
received and shall in each case be a bona fide means of equalizing the value
between the Cellular/PCS Assets Disposed of and those acquired and (f) within 5
days of the consummation of such Disposition (and if applicable, within 5 days
of such substantially contemporaneous acquisition) the Borrower shall have
delivered to the Administrative Agent an officer's certificate certifying
satisfaction of the conditions set forth in this definition and demonstrating
pro forma compliance with the financials covenants set forth in Section 7.1 of
the ▇▇▇▇▇▇ Credit Agreement.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including Capital Stock.
"PUC": any state regulatory agency or governmental authority
that exercises jurisdiction over the services provided via, or the ownership,
construction, or operation of, commercial mobile radio service facilities.
"Purchase Price Refund": any amount received by DOC or any of
its Subsidiaries as a result of a purchase price adjustment or similar event in
connection with any acquisition of Property by DOC or any of its Subsidiaries.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of DOC or any of its Subsidiaries which results in DOC or its
Subsidiaries receiving a settlement or payment which (i) when aggregated with
all settlements and payments from all such insurance claims and condemnation
proceedings received in the same fiscal year of DOC is in excess of $5,000,000
(but only to the extent that they exceed $5,000,000) and (ii) for any single
insurance claim or condemnation proceeding (in excess of the aggregate amount
referred to in clause (i)) is equal to or greater than $50,000.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 of the ▇▇▇▇▇▇ Credit
Agreement for amounts drawn under Letters of Credit issued by such Issuing
Lender.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by DOC or any of
its Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Revolving Credit Commitments pursuant to Section 2.12(b) of
the ▇▇▇▇▇▇ Credit Agreement as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or
Recovery Event in respect of which the Borrower has delivered a Reinvestment
Notice.
15
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Default or Event of Default has occurred and
is continuing and that the Borrower (directly or indirectly through a Subsidiary
of the Borrower) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale, Purchase Price Refund or Recovery Event to
acquire assets useful in its business.
"Required Lenders": at any time, the holders of more than 50%
of (a) until the Closing Date, the Commitments and (b) thereafter, the sum of
(i) the aggregate unpaid principal amount of the Term Loans then outstanding and
(ii) the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law (including the Communications Act), treaty, rule or
regulation or determination of an arbitrator or a court or of the FCC, any PUC
or any other Governmental Authority, in each case applicable to or binding upon
such Person or any of its Property or to which such Person or any of its
Property is subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer or treasurer of the Borrower, but in any event, with
respect to financial matters, the chief financial officer or treasurer of the
Borrower.
"Restricted Payments": The Borrower and DOC hereby jointly and
severally agree that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or
any Agent hereunder, each of the Borrower and DOC shall not, and shall not
permit any of their respective Subsidiaries to, directly or indirectly: Declare
or pay any dividend on, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Parent, the
Borrower or DOC or any of its Subsidiaries, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent, the
Borrower or DOC or any of its subsidiaries, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a "Derivatives Counterparty") obligating the Borrower or DOC
or any of its Subsidiaries to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
"Restricted Payments"), except that: (a) any Subsidiary of the Borrower may make
Restricted Payments to the Borrower or any Subsidiary Guarantor; (b) the
Borrower may make Restricted Payments in the form of its Capital Stock to DOC
and DOC may make Restricted Payments in the form of its Capital Stock to the
Parent; (c) so long as no Default shall have occurred and be continuing or would
result therefrom (determined on a pro forma basis after giving effect thereto),
the Borrower may pay dividends or make loans to DOC and DOC may pay dividends to
the Parent: (i) to pay corporate overhead expenses incurred in the ordinary
course of business (which have been allocated to DOC and its Subsidiaries, and
are in amounts, in accordance with Section 8.7 of the ▇▇▇▇▇▇ Credit Agreement);
(ii) to pay Taxes which are then due and payable by the Parent and DOC as part
of a consolidated group pursuant to the Tax Sharing Agreement (except any such
Taxes which are attributable to Subsidiaries of the Parent other than DOC and
its Subsidiaries); (iii) to pay regularly scheduled interest
16
payments which are due and payable with respect to the Parent Notes; (iv) to pay
regularly scheduled dividends which are then due and payable with respect to the
Parent Preferred Stock (to the extent required, or elected by the Parent, to be
paid in cash); and (v) in an aggregate amount not to exceed the respective
portions of Excess Cash Flow which in each fiscal year of DOC are not required
to be applied or offered in mandatory prepayment of the Loans pursuant to
Section 2.12(c) of the ▇▇▇▇▇▇ Credit Agreement (provided that, with respect to
any Restricted Payment pursuant to this clause (v), (A) no Default shall have
occurred or would result therefrom determined on a pro forma basis as if such
Restricted Payment had been made on the last day of each applicable fiscal year
of DOC in which any such Excess Cash Flow is generated (but excluding, for the
purposes of such determination, any Restricted Payments made in cash pursuant to
this clause (v) during such fiscal year), (B) the amount of Liquidity
immediately before and after giving effect to such Restricted Payment shall not
be less than $50,000,000, (C) the Parent Leverage Ratio shall be less than 6.0:1
both immediately before and after giving effect to such Restricted Payment
(determined on a pro forma basis) and (D) the Borrower shall have complied with
its obligations pursuant to Section 2.12(c) of the ▇▇▇▇▇▇ Credit Agreement.
"Restricted Subsidiary": means each Subsidiary of the Parent
that is not an Unrestricted Subsidiary.
"Revolving Credit Availability": at any time, the maximum
amount of Available Revolving Credit Commitments which may be borrowed by the
Borrower pursuant to Section 2.4 of the ▇▇▇▇▇▇ Credit Agreement at such time in
compliance with Section 5.2 of the ▇▇▇▇▇▇ Credit Agreement (including on a pro
forma basis as provided in Section 5.2 of the ▇▇▇▇▇▇ Credit Agreement).
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans and Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule 1 to the
Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" above.
"Revolving Credit Lender": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4 of the
▇▇▇▇▇▇ Credit Agreement.
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments (or, at
any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's
17
Revolving Extensions of Credit then outstanding constitutes the amount of the
Total Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": October 23, 2009 (or such
earlier date on which the Loans become due and payable pursuant to Section 9 of
the ▇▇▇▇▇▇ Credit Agreement).
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Revolving Credit Percentage of the aggregate
principal amount of Swing Line Loans then outstanding.
"S&P": Standard & Poor's Rating Services.
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on any
Property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Hedge Agreement": any Hedge Agreement entered into
by the Borrower or any Subsidiary Guarantor and any Qualified Counterparty.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified or
the context otherwise
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requires, all references to a "Subsidiary" or to "Subsidiaries" in the ▇▇▇▇▇▇
Credit Agreement shall refer to a Subsidiary or Subsidiaries of DOC.
"Subsidiary Guarantor": each Subsidiary of DOC that is a
Guarantor (provided that the Cellular Partnerships shall not be required to be
Guarantors).
"Supplemental Capital Expenditures": means, for any period,
the Capital Expenditures, which have been consented to in writing by the
Required Lenders, projected to be made in such period (in excess of the Capital
Expenditures permitted for such period by Sections 7.1(e)(ii)(w), (x) and (y) of
the ▇▇▇▇▇▇ Credit Agreement) by DOC and its Subsidiaries in connection with a
Permitted Acquisition.
"Swing Line Commitment": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.6 of the ▇▇▇▇▇▇ Credit
Agreement in an aggregate principal amount at any one time outstanding not to
exceed $20,000,000.
"Swing Line Lender": ▇▇▇▇▇▇ Commercial Paper Inc., in its
capacity as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6 of the ▇▇▇▇▇▇
Credit Agreement.
"Syndication Agent": Bear ▇▇▇▇▇▇▇ Corporate Lending Inc.
"System": each of the Cellular Systems and PCS Systems, now or
hereafter owned, operated, or managed by DOC or its Subsidiaries.
"Taxes": means, for any Person, taxes, assessments, or other
governmental charges or levies imposed upon such Person, its income, or any of
its properties, franchises, or assets.
"Tax Sharing Agreement": the consolidated income tax payment
agreement dated as of February 28, 1997, entered into among the Parent and its
Subsidiaries (as such agreement may be further amended from time to time with
the consent of Administrative Agent).
"Term Loans": as defined in Section 2.1 of the ▇▇▇▇▇▇ Credit
Agreement.
"Term Loan Commitment": as to any Lender, the obligation of
such Lender, if any, to make a Term Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading "Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Loan Commitments is $550,000,000.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect. The
original aggregate amount of the Total Revolving Credit Commitments is
$150,000,000.
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"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Transactions": collectively, each Merger, the Issuance of the
New Parent Senior Notes and the refinancings and repurchases contemplated in
Sections 4.16(a) and 5.1(b) of the ▇▇▇▇▇▇ Credit Agreement.
"Unrestricted Group": ACC and its Subsidiaries and each other
Unrestricted Subsidiary.
"Unrestricted Subsidiary": each Subsidiary of the Parent
(other than DOC and its Subsidiaries) which, from time to time, has been
designated as an "Unrestricted Subsidiary" pursuant to a resolution of the Board
of Directors of the Parent and notified in writing to the Administrative Agent;
provided that no Restricted Subsidiary which is a Guarantor may become an
Unrestricted Subsidiary, and no Unrestricted Subsidiary may become a Restricted
Subsidiary, without the prior written consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed).
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
SELECTED PROVISIONS OF THE ▇▇▇▇▇▇ CREDIT AGREEMENT
SECTION 2.1. TERM LOAN COMMITMENTS. Subject to the terms and
conditions hereof, the Lenders severally agree to make term loans (the "Term
Loans") to the Borrower on the Closing Date in an amount not to exceed the
amount of the Term Loan Commitment of such Lender. The Term Loans may from time
to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower
and notified to the Administrative Agent in accordance with Sections 2.2 and
2.13.
SECTION 2.2. PROCEDURE FOR TERM LOAN BORROWING. The Borrower
shall deliver to the Administrative Agent a Borrowing Notice (which Borrowing
Notice must be received by the Administrative Agent prior to 10:00 A.M., New
York City time, one Business Day prior to the anticipated Closing Date)
requesting that the Term Loan Lenders make the Term Loans on the Closing Date.
The Term Loans made on the Closing Date shall initially be Base Rate Loans, and
no Term Loan may be converted into or continued as a Eurodollar Loan having an
Interest Period in excess of one month prior to the Syndication Date. Upon
receipt of such Borrowing Notice the Administrative Agent shall promptly notify
each
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Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on the
Closing Date each Term Loan Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to
the Term Loan or Term Loans to be made by such Lender. The Administrative Agent
shall make available to the Borrower the aggregate of the amounts made available
to the Administrative Agent by the Term Loan Lenders, in like funds as received
by the Administrative Agent.
SECTION 2.4. REVOLVING CREDIT COMMITMENTS. (a) Subject to the
terms and conditions hereof, the Revolving Credit Lenders severally agree to
make revolving credit loans ("Revolving Credit Loans") to the Borrower from time
to time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the sum of
(i) the L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Swing Line
Loans then outstanding, does not exceed the amount of such
Lender's Revolving Credit Commitment. During the Revolving
Credit Commitment Period the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Revolving
Credit Loans may from time to time be Eurodollar Loans or Base
Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.13,
provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the
Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
SECTION 2.6. SWING LINE COMMITMENT. (a) Subject to the terms
and conditions hereof, the Swing Line Lender agrees that, during the Revolving
Credit Commitment Period, it will make available to the Borrower in the form of
swing line loans ("Swing Line Loans") a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments; provided that
(i) the aggregate principal amount of Swing Line
Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect (notwithstanding that the Swing Line
Loans outstanding at any time, when aggregated with the Swing
Line Lender's other outstanding Revolving Credit Loans
hereunder, may exceed the Swing Line Commitment then in effect
or such Swing Line Lender's Revolving Credit Commitment then
in effect) and
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(ii) the Borrower shall not request, and the Swing
Line Lender shall not make, any Swing Line Loan if, after
giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Credit Commitments
would be less than zero. During the Revolving Credit
Commitment Period, the Borrower may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line
Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
SECTION 2.5. PROCEDURES FOR REVOLVING CREDIT BORROWING. The
Borrower may borrow under the Revolving Credit Commitments on any Business Day
during the Revolving Credit Commitment Period, provided that the Borrower shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Loans, or
(b) one Business Day prior to the requested Borrowing Date, in
the case of Base Rate Loans). Any Revolving Credit Loans made, converted or
continued before the Syndication Date shall be Base Rate Loans or Eurodollar
Loans having an Interest Period of one month. Each borrowing of Revolving Credit
Loans under the Revolving Credit Commitments shall be in an amount equal to (x)
in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if
the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that
the Swing Line Lender may request, on behalf of the Borrower, borrowings of Base
Rate Loans under the Revolving Credit Commitments in other amounts pursuant to
Section 2.7. Upon receipt of any such Borrowing Notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make its Revolving Credit Percentage of the
amount of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent in like funds as received by the Administrative Agent.
SECTION 2.6. SWING LINE COMMITMENT. (a) Subject to the terms
and conditions hereof, the Swing Line Lender agrees that, during the Revolving
Credit Commitment Period, it will make available to the Borrower in the form of
swing line loans ("Swing Line Loans") a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments; provided that
22
(i) the aggregate principal amount of Swing Line
Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect (notwithstanding that the Swing Line
Loans outstanding at any time, when aggregated with the Swing
Line Lender's other outstanding Revolving Credit Loans
hereunder, may exceed the Swing Line Commitment then in effect
or such Swing Line Lender's Revolving Credit Commitment then
in effect) and
(ii) the Borrower shall not request, and the Swing
Line Lender shall not make, any Swing Line Loan if, after
giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Credit Commitments
would be less than zero. During the Revolving Credit
Commitment Period, the Borrower may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line
Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
SECTION 2.7. PROCEDURE FOR SWING LINE BORROWING; REFUNDING OF
SWING LINE LOANS. (a) The Borrower may borrow under the Swing Line Commitment on
any Business Day during the Revolving Credit Commitment Period, provided that
the Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying
(i) the amount to be borrowed and
(ii) the requested Borrowing Date. Each borrowing
under the Swing Line Commitment shall be in an amount equal to
$500,000 or a whole multiple of $100,000 in excess thereof.
Not later than 3:00 P.M., New York City time, on the Borrowing
Date specified in the borrowing notice in respect of any Swing
Line Loan, the Swing Line Lender shall make available to the
Administrative Agent at the Funding Office an amount in
immediately available funds equal to the amount of such Swing
Line Loan. The Administrative Agent shall make the proceeds of
such Swing Line Loan available to the Borrower on such
Borrowing Date in like funds as received by the Administrative
Agent.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 12:00 Noon, New York
City time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall
initially be a Base Rate Loan), in an amount equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date of such notice,
to repay the Swing Line Lender. Each Revolving
23
Credit Lender shall make the amount of such Revolving Credit Loan available to
the Administrative Agent at the Funding Office in immediately available funds,
not later than 10:00 A.M., New York City time, one Business Day after the date
of such notice. The proceeds of such Revolving Credit Loans shall be made
immediately available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the Refunded Swing Line
Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 9(f) shall have occurred and be continuing with respect to the Borrower,
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made pursuant to the notice referred to in Section 2.7(b)
(the "Refunding Date"), purchase for cash an undivided participating interest in
the then outstanding Swing Line Loans by paying to the Swing Line Lender an
amount (the "Swing Line Participation Amount") equal to (i) such Revolving
Credit Lender's Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line Participation
Amount, the Swing Line Lender receives any payment on account of the Swing Line
Loans, the Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participating interest
was outstanding and funded and, in the case of principal and interest payments,
to reflect such Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including
(i) any setoff, counterclaim, recoupment, defense or
other right which such Revolving Credit Lender or the Borrower
may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other
conditions specified in Section 5;
(iii) any adverse change in the condition (financial
or otherwise) of the Borrower;
(iv) any breach of this Agreement or any other Loan
Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or
24
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 2.9. COMMITMENT FEES, ETC. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Revolving Credit Lender
a commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
SECTION 2.12. MANDATORY PREPAYMENTS. (a) Unless the Required
Prepayment Lenders shall otherwise agree, if any Capital Stock shall be issued
(excluding any Capital Stock issued by DOC to the Parent or by a Wholly-Owned
Subsidiary of DOC to the direct parent of such Subsidiary), or any Indebtedness
shall be incurred (excluding any Indebtedness incurred pursuant to Section 7.2
(as such section is in effect on the date of this Agreement), other than
pursuant to Section 7.2(j)), by DOC or any of its Subsidiaries, then on the date
of such issuance or incurrence, the Loans shall be prepaid by an amount equal to
the amount of the Net Cash Proceeds of such issuance or incurrence, as set forth
in Section 2.12(d). The provisions of this Section do not constitute a consent
to the issuance of any equity securities by any entity whose equity securities
are pledged pursuant to the Guarantee and Collateral Agreement, or a consent to
the incurrence of any Indebtedness by DOC or any of its Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date DOC or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale, Purchase Price Refund or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof (which may be
delivered, and pursuant to which any such reinvestment may be made, only if no
Default or Event of Default has occurred which is continuing), within 20 days
following the date of receipt by DOC or any of its Subsidiaries of such Net Cash
Proceeds, the Loans shall be prepaid by an amount equal to the amount of such
Net Cash Proceeds, as set forth in Section 2.12(d); provided that,
notwithstanding the foregoing, on each Reinvestment Prepayment Date the Loans
shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event, as set forth in Section 2.12(d). The
provisions of this Section do not constitute a consent to the consummation of
any Disposition not permitted by Section 7.5.
(c) Unless the Required Prepayment Lenders shall otherwise
agree, if, at the end of any fiscal year of DOC, the Parent Leverage Ratio for
the preceding four fiscal quarters is
25
equal to or greater than 4.15 to 1, the Loans shall be prepaid by an amount
equal to 50% of such Excess Cash Flow, as set forth in Section 2.12(d). Each
such prepayment shall be made on a date (an "Excess Cash Flow Application Date")
no later than five days after the earlier of (i) the date on which the financial
statements of DOC referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the
Lenders and (ii) the date such financial statements are actually delivered.
(d) (i) Amounts to be applied in connection with prepayments
and Commitment reductions made pursuant to this Section shall be applied,
subject as provided in clause (d)(ii) below, first, to the prepayment of the
Term Loans and, second, to the prepayment of the Revolving Credit Loans
outstanding (but without reducing the Revolving Credit Commitment). Each such
prepayment of the Term Loans shall be applied pro rata to reduce the remaining
repayment installments thereof pursuant to Section 2.3; provided that the
amounts prepaid with respect to the Term Loans may not be reborrowed.
(ii) Notwithstanding the foregoing, any Term Loan
Lender may, at its option, elect not to accept such mandatory
prepayment of its Term Loan (any Term Loan Lender making such
election being a "Declining Lender") as follows: each
Declining Lender shall give written notice thereof to the
Administrative Agent not later than 10:00 a.m. New York City
time on the Business Day preceding the date (as notified to
each Term Loan Lender by the Administrative Agent pursuant to
a notice substantially in the form of Exhibit H) of the
applicable prepayment. On such date of prepayment, (x) an
amount equal to that portion of the Term Loans then to be
prepaid to the Term Loan Lenders (less the amount thereof that
would otherwise be payable to Declining Lenders) shall be paid
to the Term Loan Lenders that are not Declining Lenders and
(y) an amount equal to that portion of the Term Loans that
would otherwise be payable to Declining Lenders shall be
applied first in further prepayment of the Term Loans held by
Term Loan Lenders that are not Declining Lenders (to the
extent that they have not declined such further prepayment)
and second to the prepayment of the Revolving Credit Loans
outstanding, in each case on the basis provided in clause
(d)(i) above. In the event that the Administrative Agent has
not, with respect to any mandatory prepayment, received a
notice from a Term Loan Lender in accordance with this clause
(d)(ii), such Term Loan Lender shall be deemed to have waived
its rights under this clause (d)(ii) to decline receipt
thereof.
SECTION 2.13. CONVERSION AND CONTINUATION OPTIONS. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to Base Rate
Loans by giving the Administrative Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may be made only on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert Base Rate
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election (which notice shall
specify the length of the initial
26
Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan
(i) when any Event of Default has occurred and is
continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined
in its or their sole discretion not to permit such conversions
or
(ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility.
Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as
such upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such
(i) when any Event of Default has occurred and is
continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined
in its or their sole discretion not to permit such
continuations or
(ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility,
and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if
such continuation is not permitted pursuant to the preceding
proviso, such Loans shall be converted automatically to Base
Rate Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
SECTION 2.15. INTEREST RATES AND PAYMENT DATES. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such day plus the Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Base Rate in effect for
such day plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) (to the extent legally
permitted) shall bear interest at a rate per annum that is equal to (x) in the
case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the
27
foregoing provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%, and
(ii) if all or a portion of any interest payable on
any Loan or Reimbursement Obligation or any commitment fee or
other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans
under the relevant Facility plus 2% (or, in the case of any
such other amounts that do not relate to a particular
Facility, the rate then applicable to Base Rate Loans under
the Revolving Credit Facility plus 2%), in each case, with
respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well
as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
SECTION 3.1. L/C COMMITMENT. (a) Subject to the terms and
conditions hereof, each Issuing Lender, in reliance on the agreements of the
other Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue
letters of credit (the "Letters of Credit") for the account of the Borrower on
any Business Day during the Revolving Credit Commitment Period in such form as
may be approved from time to time by such Issuing Lender; provided that no such
Letter of Credit shall be issued if, after giving effect to such issuance,
(i) the L/C Obligations plus the aggregate amount of
Indebtedness outstanding at such time pursuant to Section
7.2(k) would exceed the L/C Commitment or
(ii) the aggregate amount of the Available Revolving
Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its
date of issuance and (y) the date which is five Business Days
prior to the Revolving Credit Termination Date; provided that
any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (y)
above).
SECTION 3.4. L/C PARTICIPATIONS. (a) Each Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C Participant, and, to
induce each Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from each Issuing Lender, on the terms and conditions hereinafter
stated, for such L/C Participant's own account and risk, an undivided interest
equal to such L/C Participant's Revolving Credit Percentage in each Issuing
Lender's obligations and
28
rights under each Letter of Credit issued by such Issuing Lender hereunder and
the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay
upon demand to the Administrative Agent (for the account of such Issuing Lender)
at the Administrative Agent's address for notices specified herein, and the
Administrative Agent shall promptly thereafter pay to such Issuing Lender, an
amount equal to such L/C Participant's Revolving Credit Percentage of the amount
of such draft, or any part thereof, that is not so reimbursed.
SECTION 3.5. REIMBURSEMENT OBLIGATION OF THE BORROWER. The
Borrower agrees to reimburse each Issuing Lender, on each date on which such
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any Letter of Credit and paid by such Issuing Lender, for the amount of
(a) such draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by such Issuing Lender in connection with such payment (the
amounts described in the foregoing clauses (a) and (b) in respect of any
drawing, collectively, the "Payment Amount"). Each such payment shall be made to
such Issuing Lender at its address for notices specified herein in lawful money
of the United States of America and in immediately available funds. Interest
shall be payable on each Payment Amount from the date of the applicable drawing
until payment in full at the rate set forth in
(i) until the second Business Day following the date
of the applicable drawing, Section 2.15(b) and
(ii) thereafter, Section 2.15(c).
Each drawing under any Letter of Credit shall (unless an event
of the type described in clause (i) or (ii) of Section 9(f) shall have occurred
and be continuing with respect to the Borrower, in which case the procedures
specified in Section 3.4 for funding by L/C Participants shall apply) constitute
a request by the Borrower to the Administrative Agent for a borrowing pursuant
to Section 2.5 of Base Rate Loans (or, at the option of the Administrative Agent
and the Swing Line Lender in their sole discretion, a borrowing pursuant to
Section 2.7 of Swing Line Loans) in the amount of such drawing. The Borrowing
Date with respect to such borrowing shall be the first date on which a borrowing
of Revolving Credit Loans (or, if applicable, Swing Line Loans) could be made,
pursuant to Section 2.5 (or, if applicable, Section 2.7), if the Administrative
Agent had received a notice of such borrowing at the time the Administrative
Agent receives notice from the relevant Issuing Lender of such drawing under
such Letter of Credit.
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SECTION 4.16. USE OF PROCEEDS. (a) The proceeds of the Term
Loans shall be used:
(i)(x) to repurchase, on or before November 15, 2003,
all or substantially all of the Existing ▇▇▇▇▇▇/Sygnet Senior Notes
(and pending such application such proceeds of the Term Loans shall be
held in a cash collateral account maintained with the Administrative
Agent as security for the Obligations) and (y) to pay, on the Closing
Date, all outstanding amounts under the Existing Sygnet Wireless Credit
Facility;
(ii) to repay to the Parent the intercompany loans
made by the Parent on September 26, 2003 (x) to the Borrower (made in
the amount of $197,000,000 to prepay certain Indebtedness under the
Existing Sygnet Wireless Credit Facility) and (y) to DOC (made in the
amount of $70,000,000 to prepay certain Indebtedness under the Existing
DOC Credit Facility) provided that
(1) the portion of Term Loans applied
pursuant to clause (ii)(y) shall be advanced by the Borrower
to DOC as an unsecured loan (subordinated to the Obligations
on terms acceptable to the Administrative Agent) and
(2) the Parent shall apply the proceeds of
the Term Loans received by it pursuant to this clause (ii) in
the redemption, on or before November 15, 2003, of
$250,000,000 in aggregate liquidation preference of the Parent
12.25% Senior Exchangeable Preferred Stock (and pending such
application by the Parent such proceeds of the Term Loans
shall be held in a cash collateral account maintained with the
Administrative Agent as security for the Obligations);
(iii) for general corporate purposes of the Borrower, DOC and
its Subsidiaries (including the redemption or purchase of the portion
of the Existing ▇▇▇▇▇▇/Sygnet Senior Notes remaining after giving
effect to the repurchase referred to in clause (i)(x) above); and (iv)
to pay related fees and expenses.
SECTION 5.1. CONDITIONS TO INITIAL EXTENSION OF CREDIT. The
agreement of each Lender to make the initial extension of credit requested to be
made by it hereunder is subject to the satisfaction, prior to or concurrently
with the making of such extension of credit on the Closing Date, of the
following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received
(i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, the Parent and DOC,
30
(ii) the Guarantee and Collateral Agreement, executed
and delivered by a duly authorized officer of the Borrower,
the Parent, DOC and each Subsidiary Guarantor and
(iii) a Lender Addendum executed and delivered by
each Lender and accepted by the Borrower.
(b) Transactions. The Administrative Agent shall have received
(in a form reasonably satisfactory to the Administrative Agent), true and
correct copies, certified as to authenticity by the Borrower, of each
Transaction Document and such other documents or instruments as may be
reasonably requested by the Administrative Agent, including a copy of any debt
instrument, security agreement or other material contract to which the Loan
Parties may be a party. Each Transaction Document shall be in full force and
effect without any material amendment thereto or default thereunder. The
following Transactions shall have been consummated, in each case in accordance
with the terms of the relevant Transaction Documents:
(i) The Parent shall have received not less
$650,000,000 in aggregate principal amount of gross proceeds
from the issuance of the New Parent Senior Notes;
(ii) Each Merger shall have been consummated on terms
satisfactory to the Administrative Agent; and
(iii) Simultaneously with the making of the Term
Loans hereunder, the Existing Credit Facilities shall be
terminated and all amounts outstanding thereunder shall be
paid in full.
(c) Financial Statements. The Lenders shall have received
(i) audited consolidated financial statements of the
Parent for the 2001 and 2002 fiscal years and
(ii) unaudited interim consolidated financial
statements of the Parent for each fiscal quarterly period
ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (i) of this
paragraph as to which such financial statements are available;
and such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change
in the consolidated financial condition of Parent as reflected
in the financial statements or projections contained in the
Confidential Information Memorandum.
(d) Pro Forma Balance Sheet. The Lenders shall have received
the pro forma Balance Sheet of each of the Parent and its Subsidiaries
(excluding the Unrestricted Group) as at the date of the most recent
consolidated balance sheet delivered pursuant to Section 5.1(c), adjusted to
give effect to the consummation of the Transactions and the financings
contemplated hereby as if such transactions had occurred on such date.
(e) Approvals. All governmental, FCC, PUC and third party
approvals and other Authorizations necessary or, in the discretion of the
Administrative Agent, advisable in connection with the Credit Facilities, the
Transactions, the continuing operations of the Parent
31
and its Subsidiaries and the transactions contemplated hereby shall have been
obtained and be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the Transactions or the financing contemplated hereby.
(f) Fees. The Lenders, the Administrative Agent and the
Arrangers shall have received all fees required to be paid, and all expenses for
which invoices have been presented (including reasonable fees, disbursements and
other charges of counsel to the Agents), on or before the Closing Date. The
Administrative Agent shall have received reimbursement of all out-of-pocket
expenses of the Arrangers and the Administrative Agent payable by Borrower in
connection with the Credit Facilities. All such amounts will be paid with
proceeds of Loans made on the Closing Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the
Closing Date.
(g) Business Plan. The Lenders shall have received a
satisfactory business plan and analysis for the Parent (excluding the
Unrestricted Group) for fiscal years 2003-2010.
(h) Solvency Analysis. The Lenders shall have received a
reasonably satisfactory solvency analysis certified by the chief financial
officer of each of the Borrower and the Parent which shall document the solvency
of the Borrower and its Subsidiaries and the Parent and its Subsidiaries, in
each case considered as a whole after giving effect to the Transactions and the
financings contemplated hereby.
(i) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the jurisdictions in
which Uniform Commercial Code financing statement or other filings or
recordations should be made to evidence or perfect security interests in all
assets of the DOC and its Subsidiaries, and such search shall reveal no Liens on
any of the assets of DOC or any of its Subsidiaries, except for Liens permitted
by Section 7.3 or Liens to be discharged on or prior to the Closing Date
pursuant to documentation which shall have been delivered, and shall be
satisfactory, to the Administrative Agent.
(j) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit C, with each of the appropriate insertions and
attachments referred to therein (including certified charters from the relevant
Secretary of State, by-laws and other organizational documents, board
resolutions approving the Loan Documents, recent good standing certificates and
other customary closing documentation with respect to each Loan Party) and (in
the case of the Borrower) exhibiting up-to-date copies of the Transaction
Documents, the Material Agreements and each agreement referred to on Schedule
8.6.
(k) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of McAfee & ▇▇▇▇, counsel to
the Loan Parties, substantially in the form of Exhibit F-1;
and
(ii) the legal opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
LLP, as to certain FCC, PUC and other regulatory matters with
respect to the Parent, DOC and its
32
Subsidiaries, substantially in the form of Exhibit F-2. Each
such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(l) Pledged Stock; Stock Powers; Acknowledgment and Consent;
Pledged Notes; Control Agreements. The Administrative Agent shall have received
(i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of
the pledgor thereof,
(ii) an Acknowledgment and Consent, substantially in
the form of Annex II to the Guarantee and Collateral
Agreement, duly executed by any issuer of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement
that is not itself a party to the Guarantee and Collateral
Agreement,
(iii) each promissory note pledged pursuant to the
Guarantee and Collateral Agreement endorsed (without recourse)
in blank (or accompanied by an executed transfer form in blank
satisfactory to the Administrative Agent) by the pledgor
thereof and
(iv) executed control agreements (substantially in
the form of Annex III to the Guarantee and Collateral
Agreement) with each applicable bank or securities
intermediary with respect to each deposit account or
securities account maintained by DOC, the Borrower or any
Subsidiary Guarantor required pursuant to the Guarantee and
Collateral Agreement, provided that any such control agreement
which is not executed and delivered on the Closing Date, shall
be executed and delivered to the Administrative Agent as soon
as practicable and in any event not later than 10 Business
Days following the Closing Date.
(m) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by the Administrative
Agent to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a perfected Lien
on the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by Section 7.3),
shall have been filed, registered or recorded or shall have been delivered to
the Administrative Agent be in proper form for filing, registration or
recordation.
(n) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of the
Guarantee and Collateral Agreement.
(o) Minimum Rating. The Facilities shall have received a
prospective senior secured credit rating of not less than B1 from ▇▇▇▇▇'▇ (with
a stable outlook) and B- from S&P (with a stable outlook), both of which ratings
shall be in effect on the Closing Date.
33
SECTION 5.2. CONDITIONS TO EACH EXTENSION OF CREDIT. The
agreement of each Lender to make any extension of credit requested to be made by
it hereunder on any date (including its initial extension of credit) is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions
of credit requested to be made on such date provided that such determination
shall be made on a pro forma basis as if each such extension of credit were made
(for the purposes of Section 7.1) on the most recent test date under Section
7.1. Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS.
DOC and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of DOC and the Borrower shall and shall cause each of its
Subsidiaries to:
SECTION 6.1. FINANCIAL STATEMENTS. Furnish to each Agent and
each Lender:
(a) as soon as available, but in any event within 120 days
after the end of each of its fiscal years, copies of
(i) the audited consolidated balance sheet of the
Parent and its consolidated Subsidiaries and of DOC and its
consolidated Subsidiaries,
(ii) the unaudited consolidating balance sheet of the
Parent and its consolidated Subsidiaries,
(iii) the related audited consolidated statements of
income and cash flows of the Parent and its consolidated
Subsidiaries and of DOC and its consolidated Subsidiaries and
34
(iv) the related unaudited consolidating statement of
income of the Parent and its consolidated Subsidiaries, for such year,
setting forth in each case in comparative form the figures as of the
end of and for the previous year, reported on, without any
qualification or exception (as such terms are used in accordance with
generally accepted auditing standards), by KPMG LLP or other
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each of its
fiscal years, copies of
(i) the unaudited consolidated balance sheet of the
Parent and its consolidated Subsidiaries and of DOC and its
consolidated Subsidiaries,
(ii) the unaudited consolidating balance sheet of the
Parent and its consolidated Subsidiaries,
(iii) the related unaudited consolidated statements
of income and cash flows of the Parent and its consolidated
Subsidiaries and of DOC and its consolidated Subsidiaries and
(iv) the related unaudited consolidating statement of
income of the Parent and its consolidated Subsidiaries, for
such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative
form the figures as of the end of and for the corresponding
period in the previous year, certified by a Responsible
Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and all such
financial statements to be complete and correct in all
material respects and to be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 6.2. CERTIFICATES; OTHER INFORMATION. Furnish to each
Agent and each Lender, or, in the case of clause (h), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate (substantially in the form of
Exhibit D) of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default with respect to the
covenants set forth in Section 7, except as specified in such certificate (it
being understood that such certificate shall be limited to the items that
independent certified public accountants are permitted to cover in such
certificates pursuant to their professional standards and customs of the
profession);
35
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1,
(i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default
except as specified in such certificate and
(ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining
compliance by the Parent, the Borrower, DOC and its
Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the applicable fiscal quarter or
fiscal year, as the case may be, and (y) to the extent not
previously disclosed to the Administrative Agent, a listing of
any material Intellectual Property acquired by any Loan Party
since the date of the most recent list delivered pursuant to
this clause (y) (or, in the case of the first such list so
delivered, since the Closing Date);
(c) as soon as available, and in any event no later than March
31 in each fiscal year of DOC, a detailed consolidated quarterly budget for such
fiscal year (including a projected consolidated balance sheet of DOC and its
Subsidiaries as of the end of the following fiscal year, and the related
consolidated statements of projected cash flow and projected income) and, as
soon as available, significant revisions, if any, of such budget and quarterly
projections with respect to such fiscal year, including a description of
underlying assumptions with respect thereto (collectively, the "Projections"),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any
material respect;
(d) within 60 days after the end of each fiscal quarter of the
Parent and DOC, a narrative discussion and analysis of the financial condition
and results of operations of the Parent and its Subsidiaries and of DOC and its
Subsidiaries for such fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal quarter, as compared to
the portion of the Projections covering such periods and to the comparable
periods of the previous year;
(e) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Transaction
Documents;
(f) within five days after the same are sent, copies of all
financial statements and reports that the Parent or its Subsidiaries sends to
the holders of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial statements
and (to the extent material to the interests of the Lenders hereunder) reports
that the Parent or its Subsidiaries may make to, or file with, the SEC or the
FCC;
36
(g) as soon as possible and in any event within 10 days of
obtaining knowledge thereof:
(i) any development, event, or condition that,
individually or in the aggregate with other developments,
events or conditions, could reasonably be expected to result
in the payment by DOC and its Subsidiaries, in the aggregate,
of a Material Environmental Amount; and
(ii) any notice that any Governmental Authority may
deny any application for an Environmental Permit sought by, or
revoke or refuse to renew any Environmental Permit held by,
DOC or any of its Subsidiaries;
(h) promptly and in any event within ten days of receipt
thereof, copies of all notices and communications received from the FCC, any PUC
or any other Governmental Authority which
(i) relates to any forfeiture, non-renewal,
cancellation, revocation, suspension, impairment or
termination of, or any other adverse development with respect
to, any FCC License or (to the extent that it is material to
the business of DOC or any of its Subsidiaries) any other
Authorization or
(ii) has, or could reasonably be expected to have a
Material
Adverse Effect; and
(i) promptly, such additional financial and other information
as any Lender may (through the Administrative Agent) from time to time
reasonably request.
SECTION 6.10. ADDITIONAL COLLATERAL, ETC. (a) With respect to
any Property (other than Excluded Collateral and real property) acquired after
the Closing Date by any Loan Party (other than the Parent), including (if
applicable) any acquired assets referred to in Section 6.10(e) below, (other
than (x) any Property described in paragraph (b) or paragraph (c) of this
Section, (y) any Property subject to a Lien expressly permitted by Section
7.3(g) and (z) Property acquired by an Excluded Foreign Subsidiary) as to which
the Administrative Agent, for the benefit of the Secured Parties, does not have
a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or
such other documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent,
for the benefit of the Secured Parties, a security interest in
such Property and
(ii) take all actions necessary or advisable to grant
to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform
37
Commercial Code financing statements in such jurisdictions as
may be required by the Guarantee and Collateral Agreement or
by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any tract (or series
of tracts at the same location) of real property having a Fair Market Value
(together with improvements thereof) of at least $3,000,000 acquired after the
Closing Date by any Loan Party (other than the Parent), including (if
applicable) any acquired assets referred to in Section 6.10(e) below, (other
than any such real property owned by an Excluded Foreign Subsidiary or subject
to a Lien expressly permitted by Section 7.3(g)), promptly
(i) execute and deliver a first priority Mortgage in
favor of the Administrative Agent, for the benefit of the
Secured Parties, covering such real property,
(ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage
insurance covering such real property in an amount at least
equal to the purchase price of such real property (or such
other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey
thereof, together with a surveyor's certificate and (y) any
consents or estoppels reasonably deemed necessary or advisable
by the Administrative Agent in connection with such Mortgage,
each of the foregoing in form and substance reasonably
satisfactory to the Administrative Agent and
(iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to
the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.
(c) With respect to any new Subsidiary (other than an
Unrestricted Subsidiary or an Excluded Foreign Subsidiary) created or acquired
after the Closing Date (which, for the purposes of this paragraph, shall include
any existing Subsidiary that ceases to be an Unrestricted Subsidiary or an
Excluded Foreign Subsidiary), by any Loan Party (other than the Parent, except
if applicable pursuant to Section 6.10(e)), promptly
(i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement as
the Administrative Agent deems necessary or advisable to grant
to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the
Capital Stock of such new Restricted Subsidiary,
(ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a
duly authorized officer of the applicable Loan Party or such
Restricted Subsidiary, as the case may be,
(iii) cause such new Restricted Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement and
(B) to take such actions necessary or advisable to grant to
the Administrative Agent for the benefit of the Secured
Parties a perfected first
38
priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new
Restricted Subsidiary, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as
may be required by the Guarantee and Collateral Agreement or
by law or as may be requested by the Administrative Agent, and
(iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to
the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary
(except any Unrestricted Subsidiary) directly created or acquired after the
Closing Date by any Loan Party (other than the Parent, except if applicable
pursuant to Section 6.10(e)), promptly
(i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or
such other documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Capital Stock of such
new Excluded Foreign Subsidiary that is owned by such Loan
Party (other than any Excluded Foreign Subsidiaries),
(provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Excluded Foreign
Subsidiary be required to be so pledged),
(ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a
duly authorized officer of such Loan Party or such Subsidiary,
as the case may be, and take such other action as may be
necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Lien of the Administrative Agent
thereon, and
(iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to
the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to
the Administrative Agent.
(e) In the event that the Parent acquires all or substantially
all of the Assets or Capital Stock of any Person (other than a Person which
immediately upon the acquisition of its Capital Stock, becomes an Unrestricted
Subsidiary), the Parent shall promptly notify the Administrative Agent thereof
and, if requested by the Administrative Agent, the Parent and its relevant
Restricted Subsidiary shall comply with the provisions of this Section 6.10 with
respect to such Assets or Person so acquired.
SECTION 7. NEGATIVE COVENANTS
The Borrower, DOC and (with respect to Sections 7.1(b) and
(c)) the Parent hereby jointly and severally agree that, so long as the
Commitments remain in effect, any Letter
39
of Credit remains outstanding or any Loan or other amount is owing to any Lender
or any Agent hereunder, each of the Borrower, DOC and (with respect to Sections
7.1(b) and (c)) the Parent shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly:
SECTION 7.1. Financial Condition Covenants.
(a) DOC Leverage Ratio. Permit the DOC Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of DOC ending on
the last day of any fiscal quarter set forth below to exceed the ratio set forth
below opposite such fiscal quarter:
Fiscal Quarter Ended DOC Leverage Ratio
March 31, 2004 2.25:1
June 30, 2004 3.00:1
September 30, 2004 3.00:1
December 31, 2004 3.00:1
March 31, 2005 3.00:1
June 30, 2005 3.00:1
September 30, 2005 2.90:1
December 31, 2005 2.90:1
March 31, 2006 2.90:1
June 30, 2006 2.80:1
September 30, 2006 2.70:1
December 31, 2006 2.50:1
March 31, 2007 1.65:1
June 30, 2007 1.60:1
September 30, 2007 1.60:1
December 31, 2007 1.60:1
March 31, 2008 1.55:1
June 30, 2008 1.55:1
40
Fiscal Quarter Ended DOC Leverage Ratio
September 30, 2008 and each 1.50:1
fiscal quarter ended thereafter
(b) Parent Leverage Ratio. Permit the Parent Leverage Ratio as
at the last day of any period of four consecutive fiscal quarters of the Parent
ending with the last day of any fiscal quarter set forth below to exceed the
ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Ended Parent Leverage Ratio
March 31, 2004 6.00:1
June 30, 2004 6.95:1
September 30, 2004 6.95:1
December 31, 2004 6.95:1
March 31, 2005 6.95:1
June 30, 2005 6.95:1
September 30, 2005 6.90:1
December 31, 2005 6.75:1
March 31, 2006 6.55:1
June 30, 2006 6.35:1
September 30, 2006 6.20:1
December 31, 2006 6.00:1
March 31, 2007 4.70:1
June 30, 2007 4.60:1
September 30, 2007 4.45:1
December 31, 2007 4.35:1
March 31, 2008 4.30:1
June 30, 2008 4.25:1
September 30, 2008 4.20:1
December 31, 2008 4.15:1
41
Fiscal Quarter Ended Parent Leverage Ratio
March 31, 2009 4.00:1
June 30, 2009 4.00:1
September 30,2009 3.75:1
December 31, 2009 and each 3.50:1
fiscal quarter ended thereafter
(c) Parent Interest Coverage Ratio. Permit the Parent Interest
Coverage Ratio for any period of four consecutive fiscal quarters of the Parent
(or, if less, the number of full fiscal quarters subsequent to the Closing Date,
in which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Parent Fiscal Quarter Ended Interest Coverage Ratio
December 31, 2003 1.75:1
March 31, 2004 1.75:1
June 30, 2004 1.75:1
September 30, 2004 1.75:1
December 31, 2004 1.75:1
March 31, 2005 1.75:1
June 30, 2005 1.75:1
September 30, 2005 1.75:1
December 31, 2005 2.00:1
March 31, 2006 2.00:1
June 30, 2006 2.00:1
September 30, 2006 2.00:1
December 31, 2006 2.00:1
March 31, 2007 2.00:1
June 30, 2007 2.00:1
September 30, 2007 2.00:1
42
Parent Fiscal Quarter Ended Interest Coverage Ratio
December 31, 2007 2.00:1
March 31, 2008 2.00:1
June 30, 2008 2.15:1
September 30, 2008 2.15:1
December 31, 2008 2.25:1
March 31, 2009 2.25:1
June 30, 2009 and each fiscal quarter 2.50:1
ended thereafter
(d) DOC Fixed Charge Coverage Ratio. Permit the DOC Fixed
Charge Coverage Ratio for any period of four consecutive fiscal quarters of DOC
ending with any fiscal quarter set forth below to be less than the ratio set
forth below opposite such fiscal quarter:
Fiscal Quarter Ended DOC Fixed Charge Coverage Ratio
March 31, 2004 1.10:1
June 30, 2004 1.00:1
September 30, 2004 1.00:1
December 31, 2004 1.00:1
March 31, 2005 1.00:1
June 30, 2005 1.00:1
September 30, 2005 1.05:1
December 31, 2005 1.05:1
March 31, 2006 1.05:1
June 30, 2006 1.05:1
September 30, 2006 1.05:1
December 31, 2006 1.05:1
March 31, 2007 1.15:1
June 30, 2007 1.15:1
43
Fiscal Quarter Ended DOC Fixed Charge Coverage Ratio
September 30, 2007 1.15:1
December 31, 2007 1.15:1
March 31, 2008 1.15:1
June 30, 2008 1.20:1
September 30, 2008 1.20:1
December 31, 2008 1.20:1
March 31, 2009 and each fiscal 1.25:1
quarter ended thereafter
(e) Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditure, except Capital Expenditures of DOC and its Subsidiaries
in the ordinary course of business not exceeding (i) during the period from and
including the Closing Date until December 31, 2003, $95,000,000 and (ii) in any
fiscal year of DOC thereafter, an amount equal to the sum of (w) $125,000,000,
(x) 33.33% of the amount of increase (if any) of Consolidated EBITDA of DOC for
the preceding fiscal year compared to the previous fiscal year thereto, (y) the
amount of cash capital contributions made by the Parent to DOC or any of its
Subsidiaries during such fiscal year for the purpose of making Capital
Expenditures in such fiscal year and (z) the amount of any Supplemental Capital
Expenditures permitted to be made during such fiscal year in connection with a
Permitted Acquisition; provided that (A) 100% of any such amount referred to
above, if not so expended in cash in the fiscal year for which it is permitted,
may be carried over for expenditure in the next succeeding fiscal year only and
(B) Capital Expenditures made during any fiscal year shall be deemed made,
first, in respect of amounts permitted for such fiscal year as provided above
and second, in respect of amounts carried over from the prior fiscal year
pursuant to clause (A) above.
SECTION 7.2. LIMITATION ON INDEBTEDNESS. Create, incur, assume
or suffer to exist any Indebtedness, except:
(c) Indebtedness (including Capital Lease Obligations) secured
by Liens permitted by Section 7.3(g) in an aggregate principal amount not to
exceed $40,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof outstanding at the time of
such refinancing, refunding, renewal or extension, or any shortening of the
maturity of any principal amount thereof and otherwise on
44
terms not materially less favorable to the Parent and the issuer thereof than
under the refinanced, refunded, renewed or extended Indebtedness);
(k) Indebtedness with respect to letters of credit and
banker's acceptances (which have been notified by the Borrower in writing to the
Administrative Agent) in an aggregate face amount not to exceed at any time
$20,000,000 minus the aggregate amount of any Letters of Credit and
Reimbursement Obligations outstanding at such time pursuant to this Agreement;
SECTION 7.3. LIMITATION ON LIENS. Create, incur, assume or
suffer to exist any Lien upon any of its Property, whether now owned or
hereafter acquired, except for:
(a) Liens for Taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of DOC or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or that are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and which do not in any case materially detract
from the value of the Property subject thereto or materially interfere with the
ordinary conduct of the business of DOC or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d), provided that no such
Lien is extended to cover any additional Property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section
7.2(c) to finance the acquisition of fixed or capital assets, provided that
(i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
45
(ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is
not increased and
(iv) the amount of Indebtedness initially secured
thereby is not more than 100% of the purchase price of such fixed or
capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by DOC or any of its Subsidiaries in the ordinary course of its business
and covering only the assets so leased;
(j) Liens on cash collateral securing Indebtedness outstanding
pursuant to Section 7.2(k), provided that the amount of such cash collateral
shall not exceed 110% of the outstanding Indebtedness or Guarantee Obligation
secured thereby; and
(k) Liens not otherwise permitted by this Section 7.3 so long
as neither
(i) the aggregate outstanding principal amount of the
obligations secured thereby nor
(ii) the aggregate Fair Market Value (determined, in
the case of each such Lien, as of the date such Lien is incurred) of
the assets subject thereto exceeds (as to the Borrower and all its
Subsidiaries) $4,000,000.
SECTION 7.4. LIMITATION ON FUNDAMENTAL CHANGES. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially
all of its Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(provided that (i) the Subsidiary Guarantor shall be the continuing or surviving
corporation or (ii) simultaneously with such transaction, the continuing or
surviving corporation shall become a Subsidiary Guarantor and the provisions of
Section 6.10 shall be satisfied in connection therewith)
(b) DOC may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
corporation) with the prior written approval of, and on terms acceptable to, the
Administrative Agent; and
(c) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to any Subsidiary
Guarantor.
46
SECTION 7.5. LIMITATION ON DISPOSITION OF PROPERTY. Dispose of
any of its Property (including receivables and leasehold interests), whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(c);
(d) the sale or issuance of
(i) any Subsidiary of the Borrower's Capital Stock to
the Borrower or any Subsidiary Guarantor
(ii) the Borrower's Capital Stock to DOC or
(iii) DOC's Capital Stock to the Parent;
(e) Dispositions of assets which are Permitted Asset Swaps,
having a Fair Market Value not to exceed in aggregate
(i) $225,000,000 in any fiscal year of DOC (provided
that the Maryland/Michigan Swap shall be deemed consummated in the
fiscal year of DOC ended December 31, 2003 for the purposes of the
foregoing dollar limitation) and
(ii) $475,000,000 during the term of this Agreement;
provided that in calculating the Fair Market Value with respect to each
Permitted Asset Swap pursuant to this Section 7.5(e), there shall be
subtracted from such amount of Fair Market Value the amount of any cash
consideration received pursuant to such Permitted Asset Swap to the
extent that such cash consideration exceeds 30% of the total
consideration received pursuant to such Permitted Asset Swap (such
subtracted amount to be in the amount of such excess);
(f) provided that no Default has occurred and is continuing or
would result therefrom, other Dispositions of assets (not constituting Permitted
Asset Swaps, subject as provided below) in the ordinary course of business on
arms length terms for not less than their Fair Market Value, not to exceed in
aggregate
(i) $40,000,000 in any fiscal year of DOC (provided
that the Maryland/Michigan Swap shall be deemed consummated in the
fiscal year of DOC ended December 31, 2003 for the purposes of the
foregoing dollar limitation) and
47
(ii) $100,000,000 in aggregate during the term of
this Agreement; provided that in calculating the aggregate Fair Market
Value with respect to Dispositions made during any applicable period
pursuant to this Section 7.5(f), there shall be added to such aggregate
amount of Fair Market Value an amount equal to that portion of any cash
consideration received pursuant to a Permitted Asset Swap during such
period which shall have been subtracted pursuant to the proviso in
Section 7.5(e); and
(g) any Recovery Event, provided that the requirements of
Section 2.12(b) are complied with in connection therewith.
SECTION 7.6. LIMITATION ON RESTRICTED PAYMENTS. Declare or pay
any dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Parent, the
Borrower or DOC or any of its Subsidiaries, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent, the
Borrower or DOC or any of its Subsidiaries, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a "Derivatives Counterparty") obligating the Borrower or DOC
or any of its Subsidiaries to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or any Subsidiary Guarantor;
(b) the Borrower may make Restricted Payments in the form of
its Capital Stock to DOC and DOC may make Restricted Payments in the form of its
Capital Stock to the Parent;
(c) so long as no Default shall have occurred and be
continuing or would result therefrom (determined on a pro forma basis after
giving effect thereto), the Borrower may pay dividends or make loans to DOC and
DOC may pay dividends to the Parent:
(i) to pay corporate overhead expenses incurred in
the ordinary course of business (which have been allocated to DOC and
its Subsidiaries, and are in amounts, in accordance with Section 8.7);
(ii) to pay Taxes which are then due and payable by
the Parent and DOC as part of a consolidated group pursuant to the Tax
Sharing Agreement (except any such Taxes which are attributable to
Subsidiaries of the Parent other than DOC and its Subsidiaries);
(iii) to pay regularly scheduled interest payments
which are due and payable with respect to the Parent Notes;
48
(iv) to pay regularly scheduled dividends which are
then due and payable with respect to the Parent Preferred Stock (to the
extent required, or elected by the Parent, to be paid in cash); and
(v) in an aggregate amount not to exceed the
respective portions of Excess Cash Flow which in each fiscal year of
DOC are not required to be applied or offered in mandatory prepayment
of the Loans pursuant to Section 2.12(c) (provided that, with respect
to any Restricted Payment pursuant to this clause (v),
(A) no Default shall have occurred or would
result therefrom determined on a pro forma basis as if such
Restricted Payment had been made on the last day of each
applicable fiscal year of DOC in which any such Excess Cash
Flow is generated (but excluding, for the purposes of such
determination, any Restricted Payments made in cash pursuant
to this clause (v) during such fiscal year),
(B) the amount of Liquidity immediately
before and after giving effect to such Restricted Payment
shall not be less than $50,000,000 and
(C) the Parent Leverage Ratio shall be less
than 6.0:1 both immediately before and after giving effect to
such Restricted Payment (determined on a pro forma basis) and
(D) the Borrower shall have complied with
its obligations pursuant to Section 2.12(c).
SECTION 7.8. LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS
OF DEBT INSTRUMENTS, ETC. (a) Except pursuant to the Transactions or a
refinancing, refunding, renewal or extension (to the extent such refinancing,
refunding, renewal or extension is permitted by Section 7.2(d)), make or offer
to make any optional or voluntary payment, prepayment, repurchase or redemption
of, or otherwise voluntarily or optionally defease, any Indebtedness owed to the
Parent or to any Affiliate of the Parent which is not the Borrower or a
Subsidiary Guarantor, or any long-term Indebtedness of the Parent or its
Subsidiaries (other than the Existing ▇▇▇▇▇▇/Sygnet Senior Notes and the
Existing Sygnet Wireless Senior Notes), or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance, or enter into any derivative
or other transaction with any Derivatives Counterparty obligating DOC or any of
its Subsidiaries to make payments to such Derivatives Counterparty as a result
of any change in market value of the Parent Notes or any other securities of the
Parent or its Subsidiaries,
(b) amend, modify or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
Parent Notes or any other long-term Indebtedness of the Parent or its
Subsidiaries (other than any such amendment, modification, waiver or other
change which
49
(i) would extend the maturity or reduce the amount of
any payment of principal thereof, reduce the rate or extend the date
for payment of interest thereon or relax any covenant or other
restriction applicable to the Parent or any of its Subsidiaries and
(ii) does not involve the payment of a consent fee
(unless such fee has been approved by the Administrative Agent, which
approval shall not be unreasonably withheld or delayed), or
(c) amend its certificate of incorporation in any manner
determined by the Administrative Agent to be adverse to the Lenders.
SECTION 8. COVENANTS OF THE PARENT.
The Parent hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, it shall not, directly or
indirectly:
SECTION 8.7. MANAGEMENT EXPENSES. Charge any of DOC and its
Subsidiaries for management expenses except those which are fair and reasonable
and allocated (as such allocation is approved from time to time by the
Administrative Agent) among all its Subsidiaries on a consistently-applied
basis.
SECTION 9. EVENTS OF DEFAULT. If any of the following events
shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made or furnished; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section 6.4(a),
Section 6.7(a), Section 7, Section 8 or
50
in Section 5 of the Guarantee and Collateral Agreement or (ii) an "Event of
Default" under and as defined in any Mortgage shall have occurred and be
continuing; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied
(i) for a period of 5 days with respect to a default under
Sections 6.1 or 6.2 of the ▇▇▇▇▇▇ Credit Agreement and
(ii) for a period of 30 days in each other case; or
(e) The Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall
(i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding, for
the purposes of this clause (e), the Loans and Reimbursement
Obligations) on the scheduled or original due date with respect
thereto; or
(ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or beneficiary of such Indebtedness (or a trustee or agent
on behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or to become subject to or mandatory offer to purchase by the
obligor thereunder or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided that a
default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e)
shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate
$3,000,000; or
(f)
(i) The Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall commence any case,
proceeding or other action
(A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to
51
adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or
(B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for
all or any substantial part of its assets, or the Parent, the
Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) shall make a general assignment for the
benefit of its creditors; or
(ii) there shall be commenced against the Parent, the
Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) any case, proceeding or other action of a nature
referred to in clause (i) above that
(A) results in the entry of an order for relief or
any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for
a period of 60 days; or
(iii) there shall be commenced against the Parent, the
Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or
(iv) the Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or
(v) the Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan,
(i) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan, or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Parent, the Borrower, DOC or any Commonly Controlled
Entity,
(ii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
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Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA,
(iii) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA,
(iv) the Parent, Borrower, DOC or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required Lenders
shall be likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(v) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could, in the sole judgment of the Required
Lenders, reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Parent, the Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) involving for the Parent, DOC and its Subsidiaries (other
than the Unrestricted Group) taken as a whole a liability (not paid or fully
covered by insurance as to which the relevant insurance company has acknowledged
coverage) of $20,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than by reason of the express release thereof pursuant to Section 11.15
of the ▇▇▇▇▇▇ Credit Agreement), to be in full force and effect, or any Loan
Party or any Affiliate of any Loan Party shall so assert, or any Lien created by
any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 11.15), to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) Any Change of Control shall occur; or
(l) An order is issued by any Governmental Authority, which is
not stayed, vacated or reversed within 30 days of being made, that
(i) the Borrower, the Parent, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) thereof shall divest a
significant portion of its assets pursuant to any antitrust, restraint
of trade, unfair competition, industry regulation, or similar Laws, or
(ii) all or any substantial portion of the assets of the
Borrower, the Parent, DOC or any Subsidiary of the Parent (other than
the Unrestricted Group) shall be
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condemned, seized, or otherwise appropriated, or taken into custody or
control, which in each case has, or could reasonably be expected to
have, a Material Adverse Effect; or
(m)
(i) Any Authorization necessary for the ownership or
operations of the Borrower, the Parent, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall expire, and on or
prior to such expiration, the same shall not have been renewed or
replaced by another Authorization authorizing substantially the same
operations by such Person;
(ii) any Authorization necessary for the ownership or
operations of the Borrower, the Parent, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall be canceled, revoked,
terminated, rescinded, annulled, suspended, or modified in a materially
adverse respect, or shall no longer be in full force and effect, or the
grant or the effectiveness thereof shall have been stayed, vacated,
reversed, or set aside,
(iii) the Borrower, the Parent, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) is required by any
Governmental Authority to halt construction or operations under any
Authorization and such action shall continue uncorrected for 30 days
after the applicable entity has received notice thereof; or
(iv) any Governmental Authority shall make any other adverse
determination which, in each case has, or could reasonably be expected
to have, a Material Adverse Effect; then, and in any such event,
(A) if such event is an Event of Default specified in
clause (i) or (ii) of paragraph (f) above with respect to the
Borrower, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the
documents required thereunder) shall immediately become due
and payable, and
(B) if such event is any other Event of Default,
either or both of the following actions may be taken:
(i) with the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request of the
Majority Revolving Credit Facility Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Credit
Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and
(ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the
Loans
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hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. In the case of all
Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters
of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under
the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder
and under the other Loan Documents shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to
the Borrower (or such other Person as may be lawfully entitled
thereto).
SECTION 11.15. RELEASE OF COLLATERAL AND GUARANTEE
OBLIGATIONS. (a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, upon request of the Borrower in connection with any
Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee
obligations under any Loan Document of any Person being Disposed of in such
Disposition, to the extent necessary to permit consummation of such Disposition
in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be
outstanding, upon request of the Borrower, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any
Lender that is a party to any Specified Hedge Agreement) take such actions as
shall be required to release its security interest in all Collateral, and to
release all guarantee obligations under any Loan Document, whether or not on the
date of such release there may be outstanding Obligations in respect of
Specified Hedge Agreements. Any such release of guarantee obligations shall be
deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of the
Obligations guaranteed thereby shall be rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, dissolution, liquidation
55
or reorganization of the Borrower or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any Guarantor or any substantial part of
its property, or otherwise, all as though such payment had not been made.
SECTION 11.17. DELIVERY OF LENDER ADDENDA. Each initial Lender
shall become a party to this Agreement by delivering to the Administrative Agent
a Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
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