EXHIBIT 4.7
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______________________________________________
CROWN CASTLE INTERNATIONAL CORP.
As Issuer
______________________________________________
SERIES A AND SERIES B
12 3/4% SENIOR SUBORDINATED EXCHANGE DEBENTURES DUE 2010
______________________________
EXCHANGE INDENTURE
Dated as of December 21, 1998
______________________________
______________________________
United States Trust Company of Texas, N.A.
As Trustee
______________________________
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)......................................................7.10
(a)(2) .....................................................7.10
(a)(3)......................................................N.A.
(a)(4)......................................................N.A.
(a)(5)......................................................7.10
(b).........................................................7.10
(c).........................................................N.A.
311 (a).........................................................7.11
(b).........................................................7.11
(c).........................................................N.A.
312 (a).........................................................2.05
(b).........................................................11.03
(c).........................................................11.03
313 (a).........................................................7.06
(b)(1)......................................................11.03
(b)(2)......................................................7.07
(c).........................................................7.06; 11.02
(d).........................................................7.06
314 (a).........................................................4.03; 11.02
(b).........................................................11.02
(c)(1)......................................................11.04
(c)(2)......................................................11.04
(c)(3)......................................................N.A.
(d).........................................................N.A.
(e).........................................................11.05
(f).........................................................NA
315 (a).........................................................7.01
(b).........................................................7.05, 11.02
(c).........................................................7.01
(d).........................................................7.01
(e).........................................................6.11
316 (a)(last sentence)..........................................2.09
(a)(1)(A)...................................................6.05
(a)(1)(B)...................................................6.04
(a)(2)......................................................N.A.
(b).........................................................6.07
(c).........................................................2.12
317 (a)(1)......................................................6.08
(a)(2)......................................................6.09
(b).........................................................2.04
318 (a).........................................................11.01
(b).........................................................N.A.
(c).........................................................11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01. Definitions......................................................................................1
Section 1.02. Other Definitions...............................................................................21
Section 1.03. Incorporation by Reference of Trust Indenture Act...............................................22
Section 1.04. Rules of Construction...........................................................................22
Section 1.05. Effectiveness of Indenture......................................................................23
ARTICLE 2. THE DEBENTURES........................................................................................23
Section 2.01. Form and Dating.................................................................................23
Section 2.02. Execution and Authentication....................................................................24
Section 2.03. Registrar and Paying Agent......................................................................25
Section 2.04. Paying Agent to Hold Money in Trust.............................................................25
Section 2.05. Holder Lists....................................................................................25
Section 2.06. Transfer and Exchange...........................................................................26
Section 2.07. Replacement Debentures..........................................................................37
Section 2.08. Outstanding Debentures..........................................................................37
Section 2.09. Treasury Debentures.............................................................................38
Section 2.10. Temporary Debentures............................................................................38
Section 2.11. Cancellation....................................................................................38
Section 2.12. Defaulted Interest..............................................................................39
ARTICLE 3. REDEMPTION AND PREPAYMENT.............................................................................39
Section 3.01. Notices to Trustee..............................................................................39
Section 3.02. Selection of Debentures to Be Redeemed..........................................................39
Section 3.03. Notice of Redemption............................................................................40
Section 3.04. Effect of Notice of Redemption..................................................................40
Section 3.05. Deposit of Redemption Price.....................................................................40
Section 3.06. Debentures Redeemed in Part.....................................................................41
Section 3.07. Optional Redemption.............................................................................41
Section 3.08. Mandatory Redemption............................................................................42
Section 3.09. Offer to Purchase by Application of Excess Proceeds.............................................42
ARTICLE 4. COVENANTS.............................................................................................44
Section 4.01. Payment of Debentures...........................................................................44
Section 4.02. Maintenance of Office or Agency.................................................................44
Section 4.03. Reports.........................................................................................44
Section 4.04. Compliance Certificate..........................................................................45
Section 4.05. Taxes...........................................................................................46
Section 4.06. Stay, Extension and Usury Laws..................................................................46
Section 4.07. Restricted Payments.............................................................................46
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries..................................49
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock......................................51
Section 4.10. Asset Sales.....................................................................................53
Section 4.11. Transactions with Affiliates....................................................................55
Section 4.12. [Reserved]......................................................................................56
Section 4.13. Business activities.............................................................................56
Section 4.14. Corporate Existence.............................................................................56
Section 4.15. Offer to Repurchase Upon Change of Control......................................................56
Section 4.16. [Reserved]......................................................................................57
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries...................57
Section 4.18. Senior Subordinated Debt........................................................................58
ARTICLE 5. SUCCESSORS............................................................................................58
ii
Section 5.01. Merger, Consolidation or Sale of Assets.........................................................58
Section 5.02. Successor Corporation Substituted...............................................................59
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................................59
Section 6.01. Events of Default...............................................................................59
Section 6.02. Acceleration....................................................................................60
Section 6.03. Other Remedies..................................................................................61
Section 6.04. Waiver of Past Defaults.........................................................................61
Section 6.05. Control by Majority.............................................................................61
Section 6.06. Limitation on Suits.............................................................................61
Section 6.07. Rights of Holders of Debentures to Receive Payment..............................................62
Section 6.08. Collection Suit by Trustee......................................................................62
Section 6.09. Trustee May File Proofs of Claim................................................................62
Section 6.10. Priorities......................................................................................63
Section 6.11. Undertaking for Costs...........................................................................63
ARTICLE 7. TRUSTEE...............................................................................................63
Section 7.01. Duties of Trustee...............................................................................63
Section 7.02. Rights of Trustee...............................................................................64
Section 7.03. Individual Rights of Trustee....................................................................65
Section 7.04. Trustee's Disclaimer............................................................................65
Section 7.05. Notice of Defaults..............................................................................65
Section 7.06. Reports by Trustee to Holders of the Debentures.................................................65
Section 7.07. Compensation and Indemnity......................................................................66
Section 7.08. Replacement of Trustee..........................................................................67
Section 7.09. Successor Trustee by Merger, etc................................................................67
Section 7.10. Eligibility; Disqualification...................................................................68
Section 7.11. Preferential Collection of Claims Against Company...............................................68
iii
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................68
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance........................................68
Section 8.02. Legal Defeasance and Discharge..................................................................68
Section 8.03. Covenant Defeasance.............................................................................69
Section 8.04. Conditions to Legal or Covenant Defeasance......................................................69
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions...70
Section 8.06. Repayment to Company............................................................................71
Section 8.07. Reinstatement...................................................................................71
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................71
Section 9.01. Without Consent of Holders of Debentures........................................................71
Section 9.02. With Consent of Holders of Debentures...........................................................72
Section 9.03. Compliance with Trust Indenture Act.............................................................74
Section 9.04. Revocation and Effect of Consents...............................................................74
Section 9.05. Notation on or Exchange of Debentures...........................................................74
Section 9.06. Trustee to Sign Amendments, etc.................................................................74
ARTICLE 10 SUBORDINATION.........................................................................................74
Section 10.01. Agreement to Subordinate.......................................................................74
Section 10.02. Liquidation; Dissolution; Bankruptcy...........................................................75
Section 10.03. Default on Designated Senior Debt..............................................................75
Section 10.04. Acceleration of Debentures.....................................................................76
Section 10.05. When Distribution Must Be Paid Over............................................................76
Section 10.06. Notice by Company..............................................................................77
Section 10.07. Subrogation....................................................................................77
Section 10.08. Relative Rights................................................................................77
Section 10.09. Subordination May Not Be Impaired by Company...................................................77
iv
Section 10.10. Distribution or Notice to Representative.......................................................77
Section 10.11. Rights of Trustee and Paying Agent.............................................................78
Section 10.12. Authorization to Effect Subordination..........................................................78
Section 10.13. Amendments.....................................................................................78
ARTICLE 11. MISCELLANEOUS........................................................................................78
Section 11.01. Trust Indenture Act Controls...................................................................78
Section 11.02. Notices........................................................................................78
Section 11.03. Communication by Holders of Debentures with Other Holders of Debentures........................80
Section 11.04. Certificate and Opinion as to Conditions Precedent.............................................80
Section 11.05. Statements Required in Certificate or Opinion..................................................80
Section 11.06. Rules by Trustee and Agents....................................................................80
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders.......................81
Section 11.08. Governing Law..................................................................................81
Section 11.09. No Adverse Interpretation of Other Agreements..................................................81
Section 11.10. Successors.....................................................................................81
Section 11.11. Severability...................................................................................81
Section 11.12. Counterpart Originals..........................................................................81
Section 11.13. Table of Contents, Headings, etc...............................................................81
EXHIBITS
Exhibit A1 FORM OF DEBENTURE
Exhibit A2 FORM OF REGULATION S GLOBAL DEBENTURE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
v
INDENTURE dated as of December 21, 1998 between Crown Castle International
Corp., a Delaware corporation (the "Company"), and United States Trust Company,
as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 12 3/4% Series A
Senior Subordinated Exchange Debentures due 2010 (the "Series A Debentures") and
the 12 3/4% Series B Senior Subordinated Exchange Debentures due 2010 (the
"Series B Debentures" and, together with the Series A Debentures, the "Senior
Subordinated Exchange Debentures"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Debenture" means a global debenture substantially in the form
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of Exhibit A1 hereto bearing the Global Debenture Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Debentures sold in reliance on Rule
144A.
"Acquired Debt" means, with respect to any specified Person:
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(1) Indebtedness or Disqualified Stock of any other Person existing at
the time such other Person is merged with or into or became a Subsidiary of
such specified Person, including, without limitation, Indebtedness incurred
in connection with, or in contemplation of, such other Person merging with
or into or becoming a Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Adjusted Consolidated Cash Flow" has the meaning given to such term in the
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definition of "Debt to Adjusted Consolidated Cash Flow Ratio".
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Applicable Procedures" means, with respect to any transfer or exchange of
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or for beneficial interests in any Global Certificate, the rules and procedures
of the Depositary that apply to such transfer or exchange.
"Asset Sale" means:
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1
(1) the sale, lease, conveyance or other disposition of any assets or
rights (including, without limitation, by way of a sale and leaseback),
provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Subsidiaries taken
as a whole shall be governed by Section 8.1 and/or Section 9.4 hereof and
not by Section 8.2 hereof; and
(2) the issue or sale by the Company or any of its Restricted
Subsidiaries of Equity Interests of any of the Company's Subsidiaries
(other than directors' qualifying shares or shares required by applicable
law to be held by a Person other than the Company or a Restricted
Subsidiary), in the case of either clause (1) or (2), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $1.0 million or (b) for net proceeds in excess of $1.0
million.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales:
(1) a transfer of assets by the Company to a Restricted Subsidiary or
by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary;
(2) an issuance of Equity Interests by a Subsidiary to the Company or
to another Restricted Subsidiary;
(3) a Restricted Payment that is permitted by Section 9.1 hereof;
(4) grants of leases or licenses in the ordinary course of business;
and
(5) disposals of Cash Equivalents.
"BAM" means Cellco Partnership, a Delaware general partnership doing
---
business as ▇▇▇▇ Atlantic Mobile.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
--------------
law for the relief of debtors.
"Berkshire Group" means Berkshire Fund III, A Limited Partnership,
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Berkshire Fund IV, Limited Partnership, Berkshire Investors LLC and Berkshire
Partners LLC.
"Board of Directors" means the Board of Directors of the Company, or any
------------------
authorized committee of the Board of Directors.
"Broker-Dealer" means any broker or dealer registered under the Exchange
-------------
Act.
"Business Day" means any day other than a Legal Holiday.
------------
"Capital Lease Obligation" means, at the time any determination thereof is
------------------------
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
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2
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
----------------
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than six months from the
date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any lender party to the Senior Credit Facility
or with any domestic commercial bank having capital and surplus in excess
of $500.0 million and a ▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Group and in each case
maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1)-(5) of this
definition.
"CCAIC" means CCA Investment Corp., which is an indirect wholly owned
-----
Subsidiary of the Company and was formed to hold the Company's Equity Interests
in Crown Atlantic Holding Company LLC.
"Cedel" means Cedel Bank, S.A.
-----
"Centennial Group" means Centennial Fund IV, L.P., Centennial Fund V, L.P.
----------------
and Centennial Entrepreneurs Fund V, L.P.
"Certificate of Designations" means the Certificate of Designations,
---------------------------
Preferences and Relative, Participating, Optional and Other Special Rights of
Preferred Stock and Qualifications, Limitations and
3
Restrictions Thereof with respect to the Senior Exchangeable Preferred Stock, as
the same may be amended from time to time.
"Change of Control" means the occurrence of any of the following:
-----------------
(1) 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 of the assets of the Company and
its Restricted Subsidiaries, taken as a whole, to any "person" (as such
term is used in Section 13(d)(3) of the Exchange Act) other than a
Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition), directly
or indirectly, of more than 50% of the Voting Stock of the Company
(measured by voting power rather than number of shares); provided that
transfers of Equity Interests in the Company between or among the
beneficial owners of the Company's Equity Interests and/or Equity Interests
in CTSH, in each case as of November 20, 1997, shall not be deemed to cause
a Change of Control under this clause (3) so long as no single Person
together with its Affiliates acquires a beneficial interest in more of the
Voting Stock of the Company than is at the time collectively beneficially
owned by the Principals and their Related Parties;
(4) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(5) the Company consolidates with, or merges with or into, any Person,
or any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the outstanding
Voting Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction where (x) the
Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving
or transferee Person (immediately after giving effect to such issuance) or
(y) the Principals and their Related Parties own a majority of such
outstanding shares after such transaction.
"Company" means Crown Castle International Corp. and any and all successors
-------
thereto.
"Consolidated Cash Flow" means, with respect to any Person for any period,
----------------------
the Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net Income,
plus
4
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income, minus
(4) non-cash items increasing such Consolidated Net Income for such
period (excluding any items that were accrued in the ordinary course of
business), in each case on a consolidated basis and determined in
accordance with GAAP.
"Consolidated Indebtedness" means, with respect to any Person as of any
-------------------------
date of determination, the sum, without duplication, of:
(1) the total amount of Indebtedness of such Person and its Restricted
Subsidiaries, plus
(2) the total amount of Indebtedness of any other Person, to the
extent that such Indebtedness has been Guaranteed by the referent Person or
one or more of its Restricted Subsidiaries, plus
(3) the aggregate liquidation value of all Disqualified Stock of such
Person and all preferred stock of Restricted Subsidiaries of such Person,
in each case, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any period,
-----------------------
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP,
provided that:
(1) the Net Income (but not loss) of any Person other than the Company
that is not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded;
(3) the cumulative effect of a change in accounting principles shall
be excluded; and
5
(4) the Net Income (but not loss) of any Unrestricted Subsidiary shall
be excluded whether or not distributed to the Company or one of its
Restricted Subsidiaries.
"Consolidated Tangible Assets" means, with respect to the Company, the
----------------------------
total consolidated assets of the Company and its Restricted Subsidiaries, less
the total intangible assets of the Company and its Restricted Subsidiaries, as
shown on the most recent internal consolidated balance sheet of the Company and
such Restricted Subsidiaries calculated on a consolidated basis in accordance
with GAAP.
"Continuing Directors" means, as of any date of determination, any member
--------------------
of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date;
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election; or
(3) is a designee of a Principal or was nominated by a Principal.
"Corporate Trust Office of the Trustee" shall be at the address of the
-------------------------------------
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities (including, without
-----------------
limitation, the Senior Credit Facility) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, 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, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Crown Transition Agreements" means collectively (i) the Crown Memorandum
---------------------------
of Understanding among the Company, ▇▇▇▇▇▇ ▇. Crown and ▇▇▇▇▇▇▇ ▇. Crown, dated
as of July 2, 1998, (ii) the Crown Services Agreement between the Company and
▇▇▇▇▇▇ ▇. Crown, dated as of July 2, 1998 and (iii) the Registration Rights
Crown Side Letter Agreement, among the Company, ▇▇▇▇▇▇ ▇. Crown and ▇▇▇▇▇▇▇ ▇.
Crown, dated as of August 18, 1998.
"CTI" means Castle Transmission International Limited.
---
"CTI Operating Agreement" means the memorandum of understanding among the
-----------------------
Company, CTSH, CTI and TdF, dated as of August 21, 1998, relating to the
development of certain business opportunities outside of the United States and
the provision of certain business support and technical services in connection
therewith.
"CTI Services Agreement" means the amended and restated services agreement
----------------------
between CTI and TdF, dated as of August 21, 1998, relating to the provisions of
certain services to CTI.
"CTSH" means Castle Transmission Services (Holdings) Ltd and its
----
successors.
6
"CTSH Shareholders' Agreement" means the agreement entered into by the
----------------------------
Company, CTSH and TdF, dated as of August 21, 1998, to govern the relationship
between the Company and TdF as shareholders of CTSH.
"Custodian" means the Trustee, as custodian with respect to the Debentures
---------
in global form, or any successor entity thereto.
"Debentures" means (i) the 12 3/4% Senior Subordinated Exchange Debentures
----------
due 2010 of the Company issued on the Exchange Date, (ii) any and all additional
12 3/4% Senior Subordinated Exchange Debentures due 2010 of the Company issued
after the Exchange Date as payment of interest in accordance with the provisions
of this Indenture and (iii) any and all New Exchange Debentures.
"Debt to Adjusted Consolidated Cash Flow Ratio" means, as of any date of
---------------------------------------------
determination, the ratio of:
(1) the Consolidated Indebtedness of the Company as of such date to
(2) the sum of (a) the Consolidated Cash Flow of the Company for the
four most recent full fiscal quarters ending immediately prior to such date
for which internal financial statements are available, less the Company's
Tower Cash Flow for such four-quarter period, plus (b) the product of four
times the Company's Tower Cash Flow for the most recent quarterly period
(such sum being referred to as "Adjusted Consolidated Cash Flow"),
-------------------------------
in each case determined on a pro forma basis after giving effect to all
acquisitions or dispositions of assets made by the Company and its Subsidiaries
from the beginning of such four-quarter period through and including such date
of determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such four-quarter
period. For purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the reference period or subsequent to
such reference period and on or prior to the Calculation Date shall be deemed to
have occurred on the first day of the reference period and Consolidated Cash
Flow for such reference period shall be calculated without giving effect to
clause (ii) of the proviso set forth in definition of Consolidated Net Income,
and (ii) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to Calculation Date, shall be excluded.
"Default" means any event that is, or with the passage of time or the
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giving of notice or both would be, an Event of Default.
"Definitive Debenture" means a certificated Debenture registered in the
--------------------
name of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A1 hereto except that such Debenture shall
not bear the Global Debenture Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Debenture" attached thereto.
"Depositary" means, with respect to the Debentures 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 Debentures, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
7
"Designated Senior Debt" with respect to the Debentures means:
----------------------
(1) any Indebtedness under or in respect of the Senior Credit
Facility;
(2) any Indebtedness outstanding under the Senior Discount Notes
Indenture; and
(3) any other Senior Debt permitted under this Indenture the principal
amount of which is $25.0 million or more and that has been designated by
the Company in the instrument or agreement relating to the same as
"Designated Senior Debt".
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
------------------
terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the Holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Senior Exchangeable Preferred Stock or Debentures mature;
provided, however, that any Capital Stock that would constitute Disqualified
Stock solely because the holders thereof have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a Change of Control or
an Asset Sale shall not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 9.1 hereof.
"Eligible Indebtedness" means any Indebtedness other than (i) Indebtedness
---------------------
in the form of, or represented by, bonds or other securities or any guarantee
thereof and (ii) Indebtedness that is, or may be, quoted, listed or purchased
and sold on any stock exchange, automated trading system or over-the-counter or
other securities market (including, without prejudice to the generality of the
foregoing, the market for securities eligible for resale pursuant to Rule 144A
under the Securities Act).
"Eligible Receivables" means the accounts receivable (net of any reserves
--------------------
and allowances for doubtful accounts in accordance with GAAP) of the Company and
its Restricted Subsidiaries that are not more than 60 days past their due date
and that were entered into in the ordinary course of business on normal payment
terms as shown on the most recent internal consolidated balance sheet of the
Company and such Restricted Subsidiaries, all calculated on a consolidated basis
in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants, options or other
----------------
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
---------
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Exchange Date" means the date on which the Company exchanges all but not
-------------
less than all of the Senior Exchangeable Preferred Stock for Debentures.
"Exchange Offer" means exchange and issuance by the Company of New
--------------
Preferred Stock or New Exchange Debentures, as the case may be, which shall be
registered pursuant to a Registration
8
Statement, in an amount equal to (i) the aggregate Liquidation Preference of all
shares of Senior Exchangeable Preferred Stock that are tendered by the Holders
thereof or (ii) the aggregate principal amount of all Debentures that are
tendered by the Holders thereof, as the case may be, in connection with such
exchange and issuance.
"Exchange Offer Registration Statement" means the Registration Statement
-------------------------------------
relating to the Exchange Offer, including the related Prospectus.
"Existing Indebtedness" means Indebtedness of the Company and its
---------------------
Subsidiaries (other than Indebtedness under the Senior Credit Facility) in
existence on the Issue Date, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
"Global Debentures" means, individually and collectively, each of the
-----------------
Restricted Global Debentures and the Unrestricted Global Debentures,
substantially in the form of Exhibit A1 or A2 hereto issued in accordance with
Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"Global Debenture Legend" means the legend set forth in Section
-----------------------
2.06(g)(ii), which is required to be placed on all Global Debentures issued
under this Indenture.
"Governance Agreement" means the agreement among the Company, TdF and its
--------------------
affiliates, dated as of August 21, 1998, to provide for certain rights and
obligations of the Company, TdF and its affiliates with respect to the
management of the Company.
"Government Securities" means direct obligations of, or obligations
---------------------
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of negotiable
---------
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations of
-------------------
such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Debenture is registered.
------
9
"Indebtedness" means, with respect to any Person, any indebtedness of such
------------
Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations;
(5) the balance deferred and unpaid of the purchase price of any
property; or
(6) representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all Indebtedness of
others secured by a Lien on any asset of such Person whether or not such
Indebtedness is assumed by such Person (the amount of such Indebtedness as of
any date being deemed to be the lesser of the value of such property or assets
as of such date or the principal amount of such Indebtedness of such other
Person so secured) and, to the extent not otherwise included, the Guarantee by
such Person of any Indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
---------
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
--------------------
Global Debenture through a Participant.
"Investments" means, with respect to any Person, all investments by such
-----------
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company or a Restricted Subsidiary of the Company issues any of its Equity
Interests such that, in each case, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 9.1 hereof.
10
"Issue Date" means the closing date for the sale and original issuance of
----------
the Senior Exchangeable Preferred Stock.
"Joint Venture Operating Agreement" means the Crown Atlantic Holding
---------------------------------
Company LLC Operating Agreement to be entered into by the Company and BAM,
substantially in the form of Exhibit 3.5 to the Formation Agreement, dated as of
December 8, 1998, by and among BAM, the Transferring Partnerships (as defined
therein), the Company and CCA Investment Corp.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
-------------
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by
---------------------
the Company and sent to all Holders of the Debentures for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant to
------------------
Section 5 of the Registration Rights Agreement.
"Nassau Group" means Nassau Capital Partners II, L.P. and NAS Partners I,
------------
L.L.C.
"Net Income" means, with respect to any Person, the net income (loss) of
----------
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on
such gain or loss, realized in connection with (a) any Asset Sale
(including, without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
------------
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of:
11
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof;
(2) taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements);
(3) amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness under a Credit Facility) secured by a Lien on the
asset or assets that were the subject of such Asset Sale;
(4) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Sale;
(5) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with the
assets disposed of in such Asset Sale and retained by the Company or any
Restricted Subsidiary after such Asset Sale; and
(6) without duplication, any reserves that the Company's Board of
Directors determines in good faith should be made in respect of the sale
price of such asset or assets for post closing adjustments; provided that
in the case of any reversal of any reserve referred to in clause (5) or (6)
above, the amount so reserved shall be deemed to be Net Proceeds from an
Asset Sale as of the date of such reversal.
"New Exchange Debentures" means the Company's 12 3/4% Senior Subordinated
-----------------------
Exchange Debentures due 2010 issued pursuant to this Indenture (i) in the
Exchange Offer or (ii) in connection with a resale of Debentures in reliance on
a Shelf Registration Statement.
"New Preferred Stock" means the Company's 12 3/4% Senior Exchangeable
-------------------
Preferred Stock due 2010 issued pursuant to this Certificate of Designations (i)
in the Exchange Offer or (ii) in connection with a resale of Senior Exchangeable
Preferred Stock in reliance on a Shelf Registration Statement.
"Non-Recourse Debt" means Indebtedness:
-----------------
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable (as a guarantor or otherwise) or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of
any other Indebtedness of the Company or any of its Restricted Subsidiaries
to declare a default on such other Indebtedness or cause the payment
thereof to be accellerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries (except that
12
this clause (3) shall not apply to any Indebtedness incurred by CTSH and
its Subsidiaries prior to August 21, 1998).
"Non-U.S. Person" means a Person who is not a U.S. Person.
---------------
"Obligations" means any principal, interest, penalties, fees,
-----------
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"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 or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
---------------------
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 11.05
hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
------------------
acceptable to the Trustee, that meets the requirements of Section 11.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Pari Passu Indebtedness" means, with respect to any Asset Sale Offer, all
-----------------------
other senior subordinated Indebtedness of the Company containing provisions
similar to those set forth in this Indenture.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
-----------
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"Participating Broker-Dealer" means a Broker-Dealer that participates in
---------------------------
the Exchange Offer in accordance with Section 3(c) of the Registration Rights
Agreement.
"Permitted Business" means any business conducted by the Company, its
------------------
Restricted Subsidiaries or CTSH and its Subsidiaries on the Issue Date and any
other business related, ancillary or complementary to any such business.
"Permitted Investments" means:
---------------------
(1) Liens securing Senior Debt;
(2) any Investment in the Company or in a Restricted Subsidiary of the
Company;
(3) any Investment in Cash Equivalents;
(4) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person
becomes a Restricted Subsidiary of the Company or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or
13
conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;
(5) any Restricted Investment made as a result of the receipt of non-
cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 8.2 hereof;
(6) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(7) receivables created in the ordinary course of business;
(8) loans or advances to employees made in the ordinary course of
business not to exceed $1.0 million at any one time outstanding;
(9) securities and other assets received in settlement of trade debts
or other claims arising in the ordinary course of business;
(10) purchases of additional Equity Interests in CTSH for cash
pursuant to the Governance Agreement as the same is in effect on the Issue
Date for aggregate cash consideration not to exceed $20.0 million since the
Issue Date;
(11) the Investment of up to an aggregate of $100.0 million of the net
proceeds from the sale of the Senior Exchangeable Preferred Stock (i) to be
used to consummate the formation of the Crown Atlantic Holding Company LLC
joint venture with BAM or (ii) if the Company does not consummate the
formation of the Crown Atlantic Holding Company LLC joint venture with BAM,
in one or more other Subsidiaries of the Company (which may be Unrestricted
Subsidiaries of the Company), each of which derives or expects to derive a
majority of its revenues from one or more Permitted Businesses (each such
Investment being measured as of the date made and without giving effect to
subsequent changes in value);
(12) Additional Investments with the net proceeds from the sale of the
Senior Exchangeable Preferred Stock in an aggregate amount equal to (x) the
gross proceeds from the sale of the Senior Exchangeable Preferred Stock,
minus (y) the aggregate amount of Investments made or permitted to be made
pursuant to clause (11) of this paragraph, minus (z) the aggregate amount
of Indebtedness incurred and/or Disqualified Stock issued pursuant to
clause (11) of the second paragraph of Section 9.2 hereof (each such
Investment being measured as of the date made and without giving effect to
subsequent changes in value); and
(13) other Investments in Permitted Businesses not to exceed an amount
equal to $10.0 million plus 10% of the Company's Consolidated Tangible
Assets at any one time outstanding (each such Investment being measured as
of the date made and without giving effect to subsequent changes in value).
"Permitted Junior Securities" means Equity Interests in the Company or debt
---------------------------
securities that are subordinated to all Senior Debt (and any debt securities
issued in exchange for Senior Debt) to substantially the same extent as, or to a
greater extent than, the Debentures are subordinated to Senior Debt pursuant to
this Indenture.
14
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
----------------------------------
or any of its Restricted Subsidiaries or Disqualified Stock of the Company
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) or
Disqualified Stock of the Company; provided that:
(1) the principal amount, initial accreted value or liquidation
preference, as applicable, of such Permitted Refinancing Indebtedness does
not exceed the principal amount, accreted value or liquidation preference,
as applicable, of, plus accrued interest or accumulated dividends on, the
Indebtedness or Disqualified Stock so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of expenses and prepayment
premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness or Disqualified Stock 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 Debentures,
such Permitted Refinancing Indebtedness is subordinated in right of payment
to, the Debentures on terms at least as favorable to the Holders of
Debentures 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
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded or such
Disqualified Stock is issued by the Company.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means Berkshire Group, Centennial Group, Nassau Group, TdF and
----------
any Related Party of the foregoing.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
------------------------
to be placed on all Debentures issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Prospectus" means the prospectus included in a Registration Statement at
----------
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
"Public Equity Offering" means an underwritten primary public offering of
----------------------
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
15
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
---
"Registration Rights Agreement" means the registration rights agreement to
-----------------------------
be entered into by the Company on or before the Issue relating to the
registration of the Senior Exchangeable Preferred Stock and the Debentures with
the Commission.
"Registration Statement" means any registration statement of the Company
----------------------
relating to an offering of New Preferred Stock or New Exchange Debentures, as
the case may be, that is filed pursuant to the provisions of the Registration
Rights Agreement, and includes the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
"Regulation S" means Regulation S promulgated under the Securities Act.
------------
"Regulation S Global Debenture" means a Regulation S Temporary Global
-----------------------------
Debenture or Regulation S Permanent Global Debenture, as appropriate.
"Regulation S Permanent Global Debenture" means a permanent global
---------------------------------------
Debenture substantially in the form of Exhibit A1 hereto bearing the Global
Debenture 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 Regulation S
Temporary Global Debenture upon expiration of the Restricted Period.
"Regulation S Temporary Global Debenture" means a temporary global
---------------------------------------
Debenture substantially in the form of Exhibit A2 hereto bearing 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 Debentures initially sold in reliance on
Rule 903 of Regulation S.
"Related Party" with respect to any Principal means:
-------------
(1) any controlling stockholder, 80% (or more) owned Subsidiary of such
Principal; or
(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, members, partners, owners or Persons beneficially holding an 80%
or more controlling interest of which consist of such Principal and/or such
other Persons referred to in the immediately preceding clause (1).
"Representative" means the indenture trustee or other trustee, agent or
--------------
representative for any Senior Debt.
"Responsible Officer", when used with respect to the Trustee, means any
-------------------
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Debenture" means a definitive certificate evidencing
-------------------------------
Debentures, registered in the name of the holder thereof, in the form of Exhibit
A1 or A2 hereto and bearing the Private Placement Legend.
16
"Restricted Global Debenture" means a ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or a Regulation
---------------------------
S Global Debenture, as appropriate.
"Restricted Investment" means an Investment other than a Permitted
---------------------
Investment.
"Restricted Period" means the 40-day restricted period as defined in
-----------------
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
---------------------
Person that is not an Unrestricted Subsidiary.
"Rights Agreement" means the agreement between the Company and ChaseMellon
----------------
Shareholders Services, L.L.C., as rights agent, dated as of August 21, 1998,
relating to the dividend declared by the Company consisting of the right to
purchase 1/1000th of a share of the Company's Series A Participating Cumulative
Preferred Stock, par value $.01 per share.
"Rule 144" means Rule 144 promulgated under the Securities Act.
--------
"Rule 144A" means Rule 144A promulgated under the Securities Act.
---------
"Rule 903" means Rule 903 promulgated under the Securities Act.
--------
"Rule 904" means Rule 904 promulgated the Securities Act.
--------
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Senior Credit Facility" means that certain Amended and Restated Loan
----------------------
Agreement, dated as of July 10, 1998, by and among Key Corporate Capital Inc.
and PNC Bank, National Association, as arrangers and agents for the financial
institutions listed therein, and Crown Communication Inc. and Crown Castle
International Corp. de Puerto Rico, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
"Senior Debt" means:
-----------
(1) all Indebtedness outstanding under the Senior Credit Facility and
all Hedging Obligations (including guarantees thereof) with respect thereto
of the Company, whether outstanding on the Issue Date or thereafter
incurred;
(2) all Indebtedness outstanding under the Senior Discount Notes or
any Guarantees thereof, as the case may be;
(3) any other Indebtedness permitted to be incurred by the Company or
any of its Restricted Subsidiaries under the terms of this Certificate of
Designations unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or subordinated in
right of payment to the Debentures; and
17
(4) all Obligations with respect to the preceding clauses (1), (2) and
(3) (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable
law).
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not
include:
(1) any liability for federal, state, local or other taxes owed or
owing by the Company or the Restricted Subsidiaries;
(2) any Indebtedness of the Company or any Restricted Subsidiary to
any of its Subsidiaries;
(3) any trade payables;
(4) any Indebtedness that is incurred in violation of this Certificate
of Designations (but only to the extent so incurred); or
(5) any Capitalized Lease Obligations.
"Senior Discount Notes Indenture" means that certain Indenture, dated as of
-------------------------------
November 20, 1997, governing the Company's 10 5/8% Senior Discount Notes due
2007.
"Senior Exchangeable Preferred Stock" means (i) the 12 3/4% Senior
-----------------------------------
Exchangeable Preferred Stock due 2010 of the Company issued on the Issue Date,
(ii) any and all additional fully-paid and non-assessable shares of 12 3/4%
Senior Exchangeable Preferred Stock due 2010 of the Company issued after the
Issue Date as payment of dividends in accordance with the provisions of Section
3 hereof and (iii) any and all shares of New Preferred Stock.
"Shelf Registration Statement" means the Shelf Registration Statement as
----------------------------
defined in the Registration Rights Agreement.
"Significant Subsidiary" means, with respect to any Person, any Restricted
----------------------
Subsidiary of such Person that would be a "significant subsidiary" of such
Person as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof, except that all references to "10 percent" in Rule 1-02(w)(1), (2) and
(3) shall mean "5 percent" and that all Unrestricted Subsidiaries of the Company
shall be excluded from all calculations under Rule 1-02(w).
"Stated Maturity" means, with respect to any installment of interest or
---------------
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders' Agreement" means the agreement among the Company and certain
-----------------------
stockholders of the Company, dated as of August 21, 1998, to provide for certain
rights and obligations of the
18
Company and such stockholders with respect to the governance of the Company and
such stockholders' shares of Common Stock and/or Class A Common Stock of the
Company.
"Strategic Equity Investment" means a cash contribution to the common
---------------------------
equity capital of the Company or a purchase from the Company of common Equity
Interests (other than Disqualified Stock), in either case by or from a Strategic
Equity Investor and for aggregate cash consideration of at least $50.0 million.
"Strategic Equity Investor" means a Person engaged in a Permitted Business
-------------------------
whose Total Equity Market Capitalization exceeds $1.0 billion.
"Subsidiary" means, with respect to any Person:
----------
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TdF" means TeleDiffusion de France International S.A.
---
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
---
as in effect on the date on which this Indenture is qualified under the TIA.
"Total Equity Market Capitalization" of any Person means, as of any day of
----------------------------------
determination, the sum of:
(1) the product of (A) the aggregate number of outstanding primary
shares of common stock of such Person on such day (which shall not include
any options or warrants on, or securities convertible or exchangeable into,
shares of common stock of such person) multiplied by (B) the average
closing price of such common stock listed on a national securities exchange
or the Nasdaq National Market System over the 20 consecutive business days
immediately preceding such day; plus
(2) the liquidation value of any outstanding shares of preferred stock
of such Person on such day.
"Tower Asset Exchange" means any transaction in which the Company or one of
--------------------
its Restricted Subsidiaries exchanges assets for Tower Assets and/or cash or
Cash Equivalents where the fair market value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the Tower Assets and cash or Cash Equivalents received by the
Company and its Restricted Subsidiaries in such exchange is at least equal to
the fair market value of the assets disposed of in such exchange.
19
"Tower Assets" means wireless transmission towers and related assets that
------------
are located on the site of a transmission tower.
"Tower Cash Flow" means, for any period, the Consolidated Cash Flow of the
---------------
Company and its Restricted Subsidiaries for such period that is directly
attributable to site rental revenue or license fees paid to lease or sublease
space on communication sites owned or leased by the Company, all determined on a
consolidated basis and in accordance with GAAP. Tower Cash Flow shall not
include revenue or expenses attributable to non-site rental services provided by
the Company or any of its Restricted Subsidiaries to lessees of communication
sites or revenues derived from the sale of assets.
"Trustee" means the trustee under the indenture governing the Debentures.
-------
"Unrestricted Definitive Certificate" means a definitive certificate
-----------------------------------
evidencing Senior Exchangeable Preferred Stock, registered in the name of the
holder thereof, substantially in the form of Exhibit A1 hereto, representing a
series of Senior Exchangeable Preferred Stock that do not bear the Private
Placement Legend.
"Unrestricted Global Certificate" means a permanent global certificate
-------------------------------
substantially in the form of Exhibit A1 attached hereto that bears the Global
Certificate Legend and that has the "Schedule of Exchanges of Interests in the
Global Debenture" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of Senior
Exchangeable Preferred Stock that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that is
-----------------------
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution; but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its board of directors that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a director
or executive officer of the Company or any of its Restricted Subsidiaries.
20
Any such designation by the Board of Directors shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and was permitted by Section
9.1 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of the Certificate of Designations
and this Indenture and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section 9.2
hereof, the Company shall be in default of such covenant). The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed to
be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of
any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 9.2 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default would occur or be in existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
-----------
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of such
------------
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
---------------------------------
or series or class of preferred stock at any date, the number of years obtained
by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal or liquidation preference, including payment
at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment, by
(2) the then outstanding principal amount of such Indebtedness or the
aggregate liquidation preference of the then outstanding preferred stock,
as the case may be.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
----------------------------------
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"...........................4.11
"Asset Sale Offer"................................3.09
"Authentication Order"............................2.02
"Change of Control Offer".........................4.15
21
"Change of Control Payment".......................4.15
"Change of Control Payment Date"..................4.15
"Covenant Defeasance".............................8.03
"Event of Default"................................6.01
"Excess Proceeds".................................4.10
"incur"...........................................4.09
"Legal Defeasance"................................8.02
"Offer Amount"....................................3.09
"Offer Period"....................................3.09
"Paying Agent"....................................2.03
"Payment Blockage Notice..........................10.03
"Payment Default".................................6.01
"Permitted Debt"..................................4.09
"Purchase Date"...................................3.09
"Registrar".......................................2.03
"Remaining Excess Proceeds........................4.10
"Restricted Payments".............................4.07
"Senior Asset Sale Offer".........................4.10
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures;
"indenture security Holder" means a Holder of a Debenture;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Debentures means the Company and any successor obligor
upon the Debentures.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
22
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
Section 1.05. Effectiveness of Indenture.
The provisions of this Indenture as set forth in Article 4, Article 5 and
Article 6 shall not be effective unless and until the Company issues any
Debentures hereunder.
ARTICLE 2.
THE DEBENTURES
Section 2.01. Form and Dating.
(a) General.
The Debentures and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A1 or A2 hereto. The Debentures may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Debenture shall be dated the date of its authentication. The
Debentures shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Debentures shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Debenture conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Debentures.
Debentures issued in global form shall be substantially in the form of
Exhibit A1 or A2 attached hereto (including the Global Debenture Legend thereon
and the "Schedule of Exchanges of Interests in the Global Debenture" attached
thereto). Debentures issued in definitive form shall be substantially in the
form of Exhibit A1 attached hereto (but without the Global Debenture Legend
thereon and without the "Schedule of Exchanges of Interests in the Global
Debenture" attached thereto). Each Global Debenture shall represent such of the
outstanding Debentures as shall be specified therein and each shall provide that
it shall represent the aggregate principal amount of outstanding Debentures from
time to time endorsed thereon and that the aggregate principal amount of
outstanding Debentures represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Debenture to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Debentures represented
thereby shall be made by the Trustee or the Debenture Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
23
(c) Temporary Global Debentures.
Debentures offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Debenture, which
shall be deposited on behalf of the purchasers of the Debentures represented
thereby with the Trustee, at its New York office or at such other office of the
Trustee as the Trustee may designate, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Cedel Bank,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel Bank certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Debenture (except to the
extent of any beneficial owners thereof who acquired an interest therein during
the Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ bearing a Private Placement Legend, all as contemplated
by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the
Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Debenture shall be exchanged for
beneficial interests in Regulation S Permanent Global Debentures pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Debentures, the Trustee shall cancel the Regulation S Temporary
Global Debenture. The aggregate principal amount of the Regulation S Temporary
Global Debenture and the Regulation S Permanent Global Debentures may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Debenture and the Regulation S Permanent Global Debentures that are held
by Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Debentures for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Debentures
and may be in facsimile form.
If an Officer whose signature is on a Debenture no longer holds that office
at the time a Debenture is authenticated, the Debenture shall nevertheless be
valid.
A Debenture shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Debenture
has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Debentures for original issue
--------------------
up to the aggregate principal amount stated in paragraph 4 of the Debentures.
The aggregate principal amount of Debentures outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
24
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Debentures. An authenticating agent may authenticate Debentures
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.
The Company shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Debentures may be presented for payment ("Paying Agent").
------------
The Registrar shall keep a register of the Debentures 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.
The Company initially appoints The Depository Trust Company ("DTC") to act
---
as Depositary with respect to the Global Debentures.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Debenture Custodian with respect to the Global
Debentures.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Debentures, and will
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) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Debentures.
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 (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other 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 of
Debentures and the Company shall otherwise comply with TIA (S) 312(a).
25
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Debentures.
A Global Debenture 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, the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
All Global Debentures will be exchanged by the Company for Definitive Debentures
if (i) the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Debentures (in whole but not in part)
should be exchanged for Definitive Debentures and delivers a written notice to
such effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Debenture be exchanged by the Company for Definitive Debentures
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under
the Securities Act. Upon the occurrence of either of the preceding events in
(i) or (ii) above, Definitive Debentures shall be issued in such names as the
Depositary shall instruct the Trustee. Global Debentures also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Debenture authenticated and delivered in exchange for, or in lieu of, a
Global Debenture 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 Debenture. A Global Debenture may not be exchanged
for another Debenture other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Debenture may be transferred and exchanged as
provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Debentures. The transfer and exchange of beneficial interests in the Global
Debentures shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Debentures 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 the Global Debentures also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Debenture.
Beneficial interests in any Restricted Global Debenture may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Debenture in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that prior to
the expiration of the Restricted Period, transfers of beneficial interests in
the Temporary Regulation S Global Debenture may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Debenture may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Debenture. 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
Debentures. 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
26
interest in another Global Debenture in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Debenture 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 Debenture shall be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event shall Definitive
Debentures be issued upon the transfer or exchange of beneficial interests in
the Regulation S Temporary Global Debenture prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation of
an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global Debentures. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Debentures
contained in this Indenture and the Debentures or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Debenture(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Debenture. A beneficial interest in any Restricted Global Debenture may be
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Debenture 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Debenture or the Regulation
S Global Debenture, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2)
thereof; and
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global
Debenture for Beneficial Interests in the Unrestricted Global Debenture. A
beneficial interest in any Restricted Global Debenture may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Debenture
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Debenture if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Debentures or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
27
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Debenture proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Debenture, 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
Debenture 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 Debenture, 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 subparagraph (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 is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Debenture has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Debenture cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Debenture.
(c) Transfer or Exchange of Beneficial Interests for Definitive Debentures.
(i) Beneficial Interests in Restricted Global Debentures to Restricted
Definitive Debentures. If any holder of a beneficial interest in a Restricted
Global Debenture proposes to exchange such beneficial interest for a
Restricted Definitive Debenture or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Debenture, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Debenture proposes to exchange such beneficial interest for a Restricted
Definitive Debenture, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
28
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(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; or
(F) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Debenture to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Debenture in the appropriate principal amount. Any Definitive Debenture
issued in exchange for a beneficial interest in a Restricted Global
Debenture pursuant to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Debentures to the
Persons in whose names such Debentures are so registered. Any Definitive
Debenture issued in exchange for a beneficial interest in a Restricted
Global Debenture pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Debenture may not be exchanged
for a Definitive Debenture or transferred to a Person who takes delivery
thereof in the form of a Definitive Debenture prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Debentures to Unrestricted
Definitive Debentures. A holder of a beneficial interest in a Restricted
Global Debenture may exchange such beneficial interest for an Unrestricted
Definitive Debenture or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Debenture
only if:
29
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Debentures or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Debenture proposes to exchange such beneficial interest for a
Definitive Debenture that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Debenture proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Debenture
that does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (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 is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Debentures to Unrestricted
Definitive Debentures. If any holder of a beneficial interest in an
Unrestricted Global Debenture proposes to exchange such beneficial interest
for a Definitive Debenture or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Debenture, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable Global
Debenture to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Debenture in the
appropriate principal amount. Any Definitive Debenture 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 instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Debentures to
the Persons in whose names such Debentures are so registered. Any Definitive
Debenture issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
30
(d) Transfer and Exchange of Definitive Debentures for Beneficial
Interests.
(i) Restricted Definitive Debentures to Beneficial Interests in Restricted
Global Debentures. If any Holder of a Restricted Definitive Debenture
proposes to exchange such Debenture for a beneficial interest in a Restricted
Global Debenture or to transfer such Restricted Definitive Debentures to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Debenture, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Debenture proposes to
exchange such Debenture for a beneficial interest in a Restricted Global
Debenture, 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 Debenture is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such Restricted Definitive Debenture is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Debenture is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Debenture 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; or
(F) if such Restricted Definitive Debenture is being transferred
pursuant to an effective registration statement under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Debenture, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Debenture, in the case
of clause (B) above, the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in the case of clause (C)
above, the Regulation S Global Debenture, and in all other cases, the ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(ii) Restricted Definitive Debentures to Beneficial Interests in
Unrestricted Global Debentures. A Holder of a Restricted Definitive Debenture
may exchange such Debenture for a beneficial interest in an Unrestricted
Global Debenture or transfer such Restricted Definitive Debenture to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of
31
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Debentures or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Debentures proposes to exchange
such Debentures for a beneficial interest in the Unrestricted Global
Debenture, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Debentures proposes to transfer
such Debentures to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Debenture, 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 subparagraph (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 is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Debentures and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Debenture.
(iii) Unrestricted Definitive Debentures to Beneficial Interests in
Unrestricted Global Debentures. A Holder of an Unrestricted Definitive
Debenture may exchange such Debenture for a beneficial interest in an
Unrestricted Global Debenture or transfer such Definitive Debentures to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture at any time. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Debenture and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Debentures.
If any such exchange or transfer from a Definitive Debenture to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Debenture has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
principal amount of Definitive Debentures so transferred.
32
(e) Transfer and Exchange of Definitive Debentures for Definitive
Debentures. Upon request by a Holder of Definitive Debentures and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Debentures. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Debentures duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Debentures to Restricted Definitive Debentures.
Any Restricted Definitive Debenture may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Debenture if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver 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) Restricted Definitive Debentures to Unrestricted Definitive
Debentures. Any Restricted Definitive Debenture may be exchanged by the
Holder thereof for an Unrestricted Definitive Debenture or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Debenture if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the distribution
of the Exchange Debentures or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
33
(1) if the Holder of such Restricted Definitive Debentures proposes
to exchange such Debentures for an Unrestricted Definitive Debenture,
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 Debentures proposes
to transfer such Debentures to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Debenture, 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 subparagraph (D), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Debentures to Unrestricted Definitive
Debentures. A Holder of Unrestricted Definitive Debentures may transfer such
Debentures to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Debenture. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive
Debentures pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Debentures in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Debentures tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Debentures and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Debentures in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Debentures accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Debentures, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Debentures to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Debentures so accepted Definitive Debentures in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the face of all Global
Debentures and Definitive Debentures 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
Debenture and each Definitive Debenture (and all Debentures issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form.
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE
34
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT
TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED UNDER THE CERTIFICATE OF
DESIGNATIONS PURSUANT TO WHICH THIS SECURITY IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
REGULATION S THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF CROWN
CASTLE INTERNATIONAL CORP. THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO CROWN CASTLE INTERNATIONAL CORP. OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(B) Notwithstanding the foregoing, any Global Debenture or Definitive
Debenture issued pursuant to subparagraphs (b)(iv), (c)(iii), (c)(iv),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all
Debentures issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) Global Debenture Legend. Each Global Debenture shall bear a legend in
substantially the following form:
"THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS DEBENTURE) 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 2.07 OF THE
INDENTURE, (II) THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE
35
AND (IV) THIS GLOBAL DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Debenture Legend. The Regulation S
Temporary Global Debenture shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL DEBENTURE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
DEBENTURES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
DEBENTURE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON. HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT."
(h) Cancellation and/or Adjustment of Global Debentures.
At such time as all beneficial interests in a particular Global Debenture
have been exchanged for Definitive Debentures or a particular Global Debenture
has been redeemed, repurchased or canceled in whole and not in part, each such
Global Debenture shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Debenture is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Debenture or for Definitive Debentures, the principal amount of
Debentures represented by such Global Debenture shall be reduced accordingly and
an endorsement shall be made on such Global Debenture 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
Debenture, such other Global Debenture shall be increased accordingly and an
endorsement shall be made on such Global Debenture 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) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Global Debentures and Definitive
Debentures upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial interest
in a Global Debenture or to a Holder of a Definitive Debenture for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of or
exchange any Debenture selected for redemption in whole or in part, except the
unredeemed portion of any Debenture being redeemed in part.
36
(iv) All Global Debentures and Definitive Debentures issued upon any
registration of transfer or exchange of Global Debentures or Definitive
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Debentures or Definitive Debentures surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Debentures during a period beginning at the
opening of business 15 days before the day of any selection of Debentures for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Debenture so selected for redemption in whole or in part, except the
unredeemed portion of any Debenture being redeemed in part or (c) to register
the transfer of or to exchange a Debenture between a record date and the next
succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any
Debenture, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Debenture is registered as the absolute owner of such
Debenture for the purpose of receiving payment of principal of and interest on
such Debentures and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Debentures and Definitive
Debentures in accordance with the provisions of Section 2.02 hereof.
(viii) 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.
Section 2.07. Replacement Debentures
If any mutilated Debenture is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Debenture, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Debenture if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of 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
Debenture is replaced. The Company may charge for its expenses in replacing a
Debenture.
Every replacement Debenture 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 Debentures duly issued hereunder.
Section 2.08. Outstanding Debentures.
The Debentures outstanding at any time are all the Debentures authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Debenture effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Debenture does not cease
37
to be outstanding because the Company or an Affiliate of the Company holds the
Debenture; however, Debentures 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.
If a Debenture is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Debentures payable on that date, then on and after that date such
Debentures shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. Treasury Debentures.
In determining whether the Holders of the required principal amount of
Debentures have concurred in any direction, waiver or consent, Debentures 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 relying on any such
direction, waiver or consent, only Debentures that the Trustee knows are so
owned shall be so disregarded.
Section 2.10. Temporary Debentures
Until certificates representing Debentures are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Debentures. Temporary Debentures shall be
substantially in the form of certificated Debentures but may have variations
that the Company considers appropriate for temporary Debentures and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Debentures in
exchange for temporary Debentures.
Holders of temporary Debentures shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Debentures to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Debentures surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Debentures surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Debentures (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled
Debentures shall be delivered to the Company. The Company may not issue new
Debentures to replace Debentures that it has paid or that have been delivered to
the Trustee for cancellation.
38
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Debentures, 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 Debentures and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Debenture and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Debentures pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Debentures to be redeemed and (iv) the redemption price (expressed as
a percentage of principal amount).
Section 3.02. Selection of Debentures to Be Redeemed
If less than all of the Debentures are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Debentures to be
redeemed or purchased among the Holders of the Debentures in compliance with the
requirements of the principal national securities exchange, if any, on which the
Debentures are listed or, if the Debentures are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee shall deem fair
and appropriate; provided that no Debentures of $1,000 or less shall be redeemed
in part. In the event of partial redemption by lot, the particular Debentures
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 Debentures not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Debentures
selected for redemption and, in the case of any Debenture selected for partial
redemption, the principal amount thereof to be redeemed. Debentures and
portions of Debentures selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Debentures of a Holder are to be redeemed,
the entire outstanding amount of Debentures held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Debentures called for
redemption also apply to portions of Debentures called for redemption.
39
Section 3.03. Notice of Redemption
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Debentures are to be redeemed at its registered address.
The notice shall identify the Debentures to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Debenture is being redeemed in part, the portion of the
principal amount of such Debenture to be redeemed and that, after the redemption
date upon surrender of such Debenture, a new Debenture or Debentures in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Debenture;
(d) the name and address of the Paying Agent;
(e) that Debentures called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Debentures called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Debentures and/or Section of this Indenture
pursuant to which the Debentures called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Debentures.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Debentures called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price
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 on all Debentures 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
40
amounts necessary to pay the redemption price of, and accrued interest on, all
Debentures to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Debentures
or the portions of Debentures called for redemption. If a Debenture is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Debenture was registered at the close of business on such
record date. If any Debenture called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Debentures and in Section 4.01 hereof.
Section 3.06. Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Debenture equal in principal
amount to the unredeemed portion of the Debenture surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Debentures pursuant to this
Section 3.07 prior to December 15, 2003. Thereafter, the Company shall have the
option to redeem the Debentures, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the applicable
redemption date, if redeemed during the twelve-month period beginning on
December 15 of the years indicated below:
Year Percentage
---- ----------
2003......................................106.375%
2004......................................104.781%
2005......................................103.188%
2006......................................101.594%
2007 and thereafter.......................100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07,
during the first 36 months after the Issue Date, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount of Debentures
originally issued at a redemption price equal to 112.750% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds of one or more Public
Equity Offerings and/or Strategic Equity Investments; provided that at least
$130.0 million aggregate principal amount of Debentures remains outstanding
immediately after the occurrence of such redemption (excluding Debentures held
by the Company or any of its Subsidiaries);and provided, further, that such
redemption shall occur within 60 days of the date of the closing of such Public
Equity Offering and/or Strategic Equity Investment.
41
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Debentures.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to holders of Debentures and Pari Passu
Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount
----------------
(or accreted value, as applicable, of Debentures and Pari Passu Indebtedness
that may be purchased out of Excess Proceeds), of Debentures and Pari Passu
Indebtedness it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
------------
Business Days after the termination of the Offer Period (the "Purchase Date"),
-------------
the Company shall purchase the principal amount (or accreted value, as
applicable) of Debentures and Pari Passu Indebtedness required to be purchased
pursuant to Section 4.10 hereof (on a pro rata basis if Debentures and Pari
Passu Indebtedness tendered are in excess of the Excess Proceeds) (which maximum
principal amount of Debentures shall be the "Offer Amount") or, if less than the
------------
Offer Amount has been tendered, all Debentures and Pari Passu Indebtedness
tendered in response to the Asset Sale Offer. Payment for any Debentures so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest 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 Debenture is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Debentures pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Debentures pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Debenture not tendered or accepted for payment shall
continue to accrue interest;
42
(d) that, unless the Company defaults in making such payment, any
Debenture accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Debenture purchased pursuant to an
Asset Sale Offer may only elect to have all of such Debenture purchased and may
not elect to have only a portion of such Debenture purchased;
(f) that Holders electing to have a Debenture purchased pursuant to
any Asset Sale Offer shall be required to surrender the Debenture, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Debenture
completed, or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Debenture the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Debenture purchased;
(h) that, if the aggregate principal amount (or accreted value, as
applicable) of Debentures and Pari Passu Indebtedness tendered by Holders
exceeds the Offer Amount, the Company shall select the Debentures to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Debentures in denominations of $1,000,
or integral multiples thereof, shall be purchased and Pari Passu Indebtedness);
and
(i) that Holders whose Debentures were purchased only in part shall be
issued new Debentures equal in principal amount to the unpurchased portion of
the Debentures surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Debentures or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Debentures, Pari
Passu Indebtedness or portions thereof tendered, and shall deliver to the
Trustee an Officers' Certificate stating that such Debentures, and Pari Passu
Indebtedness or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Debentures tendered by such Holder
and accepted by the Company for purchase, and the Company shall promptly issue a
new Debenture, and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Debenture to such Holder, in a
principal amount equal to any unpurchased portion of the Debenture surrendered.
Any Debenture not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
43
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Debentures.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest and Liquidated Damages, if any, on the Debentures on the dates
and in the manner provided in the Debentures. Principal, premium, if any,
interest and Liquidated Damages, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 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, interest and Liquidated Damages, if any, then
due. The Company shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
On or prior to December 15, 2003, the Company may, at its option, pay
interest (1) in cash or (2) in additional Debentures having an aggregate
principal amount equal to the amount of such interest. After December 15, 2003,
the Company shall pay interest in cash only.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Debentures 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
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Debentures may be surrendered
for registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Debentures may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
Section 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Debentures are outstanding, the Company shall furnish to the Holders
of Debentures:
44
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
that describes the financial condition and results of operations of the
Company and its consolidated Subsidiaries (showing in reasonable detail, in
the footnotes to the financial statements and in "Management's Discussion
and Analysis of Financial Condition and Results of Operations" (in each
case to the extent not prohibited by the SEC's rules and regulations), (A)
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of the Company and (B) the
Tower Cash Flow for the most recently completed fiscal quarter and the
Adjusted Consolidated Cash Flow for the most recently completed four-
quarter period) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants; and
(ii) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports, in each
case within the time periods specified in the SEC's rules and regulations.
In addition, following consummation of the exchange offer contemplated by
the Registration Rights Agreement, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. The Company shall at times comply with TIA
(S) 314(a).
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 stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Debentures
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
45
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 Debentures are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Debentures.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company (other than any such Equity
Interests owned by the Company or any Restricted Subsidiary of the Company
and other than the Senior Exchangeable Preferred Stock);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Debentures, except a payment of interest or the payment
of principal at Stated Maturity; or
46
(4) make any Restricted Investment, (all such payments and other
actions set forth in clauses (1) through (4) above being collectively
referred to as "Restricted Payments"),
-------------------
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default shall have occurred and be continuing or would occur as
a consequence thereof; and
(2) the Company would have been permitted to incur at least $1.00 of
additional indebtedness pursuant to the Debt to Adjusted Consolidated Cash
Flow Ratio test set forth in the first paragraph of Section 4.09 hereof;
provided that the Company and its Restricted Subsidiaries shall not be
required to comply with this clause (2) in order to make any Restricted
Investment; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted
by clauses (2), (3) and (4) of the next succeeding paragraph), is less than
the sum, without duplication, of:
(a) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the Issue Date to the end of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit); plus
(b) 100% of the aggregate net cash proceeds received by the
Company since the Issue Date as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock and except to the extent such net cash
proceeds are used to incur new Indebtedness outstanding pursuant to
clause (10) of the second paragraph of Section 4.09 hereof) or from
the issue or sale of Disqualified Stock or debt securities of the
Company that have been converted into such Equity Interests (other
than Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock); plus
(c) to the extent that any Restricted Investment that was made
after the Issue Date is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (A) the cash return of capital with
respect to such Restricted Investment (less the cost of disposition,
if any) and (B) the initial amount of such Restricted Investment; plus
(d) to the extent that any Unrestricted Subsidiary of the Company
and all of its Subsidiaries are designated as Restricted Subsidiaries
after the Issue Date, the lesser of (A) the fair market value of the
Company's Investments in such Subsidiaries as of the date of such
designation, or (B) the sum of (x) the fair market value of the
Company's Investments in such Subsidiaries as of the date on which
such Subsidiaries were originally designated as Unrestricted
Subsidiaries and (y) the amount of any Investments
47
made in such Subsidiaries subsequent to such designation (and treated
as Restricted Payments) by the Company or any Restricted Subsidiary;
provided that:
(i) in the event the Unrestricted Subsidiaries designated as
Restricted Subsidiaries are CTSH and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds 34.3% of the fair market value of CTSH and
its Subsidiaries as a whole; and
(ii) in the event the Unrestricted Subsidiaries designated
as Restricted Subsidiaries are CCAIC and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds $250.0 million; plus
(e) 50% of any dividends received by the Company or a Restricted
Subsidiary after the Issue Date from an Unrestricted Subsidiary of the
Company, to the extent that such dividends were not otherwise included
in Consolidated Net Income of the Company for such period.
The foregoing provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(2) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated
Indebtedness or Equity Interests of the Company in exchange for, or out of
the net cash proceeds of the sale after the Issue Date (other than to a
Subsidiary of the Company) of, any Equity Interests of the Company (other
than any Disqualified Stock); provided that such net cash proceeds are not
used to incur new Indebtedness pursuant to clause (10) of the second
paragraph of Section 4.09 hereof); and provided further that, in each such
case, the amount of any such net cash proceeds that are so utilized shall
be excluded from clause (3) (b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its common Equity Interests on a pro rata basis;
or
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any member of the Company's (or any of its
Restricted Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the Issue
Date; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or
48
retired Equity Interests shall not exceed (a) $500,000 in any twelve-month
period and (b) $5.0 million in the aggregate.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default; provided
that in no event shall the businesses operated by the Company's Restricted
Subsidiaries as of November 20, 1997 be transferred to or held by an
Unrestricted Subsidiary. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated shall be deemed to
be Restricted Payments at the time of such designation and shall reduce the
amount available for Restricted Payments under the first paragraph of this
Section 4.07. All such outstanding Investments shall be deemed to constitute
Investments in an amount equal to the fair market value of such Investments at
the time of such designation. Such designation shall only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary if such designation would not cause a Default.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any property, assets or Investments required by this Section
4.07 to be determined shall be determined by the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to
(1) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits;
(2) pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(3) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(4) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
However, the foregoing restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(1) Existing Indebtedness or Indebtedness under the Senior Credit
Facility, in each case as in effect on the Issue Date, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole,
with respect to such
49
dividend and other payment restrictions than those contained in the
applicable series of Existing Indebtedness or in the Senior Credit
Facility, in each case as in effect on the Issue Date;
(2) encumbrances and restrictions applicable to any Unrestricted
Subsidiary, as the same are in effect as of the date on which such
Subsidiary becomes a Restricted Subsidiary, and as the same may be amended,
modified, restated, renewed, increased, supplemented, refunded, replaced or
refinanced; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings
are no more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in the applicable
series of Indebtedness of such Subsidiary as in effect on the date on which
such Subsidiary becomes a Restricted Subsidiary;
(3) any Indebtedness (incurred in compliance with Section 4.09 hereof)
or any agreement pursuant to which such Indebtedness is issued if the
encumbrance or restriction applies only in the event of a payment default
or default with respect to a financial covenant contained in such
Indebtedness or agreement and such encumbrance or restriction is not
materially more disadvantageous to the holders of the Debentures than is
customary in comparable financings (as determined by the Company) and the
Company determines that any such encumbrance or restriction will not
materially affect the Company's ability to pay interest on or the principal
of the Debentures;
(4) this Indenture and the Debentures;
(5) applicable law;
(6) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect
at the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(7) by reason of customary non-assignment provisions in leases or
licenses entered into in the ordinary course of business;
(8) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in
clause (4) in the prior paragraph on the property so acquired;
(9) the provisions of agreements governing Indebtedness incurred
pursuant to clause (4) of the second paragraph of Section 4.09 hereof;
(10) any agreement for the sale of a Restricted Subsidiary that
restricts that Restricted Subsidiary pending its sale;
(11) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive,
50
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(12) Liens that limit the right of the debtor to transfer the assets
subject to such Liens;
(13) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements; and
(14) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively "incur") any Indebtedness (including Acquired
-----
Debt) and the Company shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, that the Company may incur Indebtedness (including Acquired
Debt) or issue shares of Disqualified Stock and the Company's Restricted
Subsidiaries may incur Indebtedness if, in each case, the Company's Debt to
Adjusted Consolidated Cash Flow Ratio at the time of incurrence of such
Indebtedness or the issuance of such Disqualified Stock, after giving pro forma
effect to such incurrence or issuance as of such date and to the use of proceeds
therefrom as if the same had occurred at the beginning of the most recently
ended four full fiscal quarter period of the Company for which internal
financial statements are available, would have been no greater than 7.5 to 1.
The provisions of the first paragraph of this Section 4.09 shall not apply
to the incurrence of any of the following items of Indebtedness or to the
issuance of any of the following items of Disqualified Stock or preferred stock
(collectively, "Permitted Debt"):
--------------
(1) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (including Indebtedness under Credit
Facilities) in an aggregate principal amount (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability
of the Company and its Restricted Subsidiaries thereunder) at any one time
outstanding not to exceed the greater of (x) $200.0 million less the
aggregate amount of all Net Proceeds of Asset Sales applied after the Issue
Date to repay Indebtedness under a Credit Facility pursuant to Section 4.10
hereof and (y) 70% of the Eligible Receivables that are outstanding as of
such date of incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence by the Company of Indebtedness represented by the
Debentures;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business
51
of the Company or such Restricted Subsidiary, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (4), not to exceed $10.0 million at any one time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund Indebtedness of the Company or any of its Restricted
Subsidiaries or Disqualified Stock of the Company (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph hereof or clauses (2) or (3) or this clause (5) of this
paragraph;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Debentures and (ii)(A) any subsequent issuance or transfer
of Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary and (B) any sale
or other transfer of any such Indebtedness to a Person that is not either
the Company or a Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding or currency exchange risk;
(8) the guarantee by the Company or any of its Restricted Subsidiaries
of Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Indenture;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt in connection with the acquisition of assets
or a new Subsidiary and the incurrence by the Company's Restricted
Subsidiaries of Indebtedness as a result of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, in the
case of any such incurrence of Acquired Debt, such Acquired Debt was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to such acquisition by the Company or one of its Restricted
Subsidiaries and was not incurred in connection with, or in contemplation
of, such acquisition by the Company or one of its Restricted Subsidiaries;
and provided further that, in the case of any incurrence pursuant to this
clause (9), as a result of such acquisition by the Company or one of its
Restricted Subsidiaries, the Company's Debt to Adjusted Consolidated Cash
Flow Ratio at the time of incurrence of such Acquired Debt, after giving
pro forma effect to such incurrence as if the same had occurred at the
beginning of the most recently ended four full fiscal quarter period of the
Company for which internal financial statements are available, would have
been less than the Company's Debt to Adjusted Consolidated Cash Flow Ratio
for the same period without giving pro forma effect to such incurrence;
52
(10) the incurrence by the Company of Indebtedness not to exceed, at
any one time outstanding, the sum of (i) 2.0 times the aggregate net cash
proceeds plus (ii) 1.0 times the fair market value of non-cash proceeds
(evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee), in each case, from the
issuance and sale, other than to a Subsidiary, of Equity Interests (other
than Disqualified Stock) of the Company since the Issue Date (less the
amount of such proceeds used to make Restricted Payments as provided in
clause (3)(b) of the first paragraph or clause (2) of the second paragraph
of Section 4.07 hereof); provided that such Indebtedness does not mature
prior to the Stated Maturity of the Debentures and the Weighted Average
Life to Maturity of such Indebtedness is longer than that of the
Debentures; and
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness and/or the issuance by the Company
of Disqualified Stock in an aggregate principal amount, accreted value or
liquidation preference, as applicable, at any time outstanding, not to
exceed an amount equal to $100.0 million less the aggregate amount of all
Investments made pursuant to clause (12) of the definition of Permitted
Investments; provided that, notwithstanding the foregoing, the aggregate
principal amount, accreted value or liquidation preference, as applicable,
permitted to be incurred or issued pursuant to this clause (11) shall not
be reduced to less than $25.0 million.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (11) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify (or later reclassify in
whole or in part) such item of Indebtedness in any manner that complies with
this Section 4.09. Any Indebtedness incurred pursuant to clause (1) of the
second paragraph of Section 9.2 of the Certificate of Designations shall be
deemed to have been incurred under clause (1) above on the Exchange Date.
Accrual of interest, accretion or amortization of original issue discount and
the payment of interest in the form of additional Indebtedness shall not be
deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
Section 4.10. Asset Sales
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the
fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of the assets
or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Tower Asset Exchange, at least 75% of the
consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following shall be deemed to be
cash:
(1) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent
53
liabilities and liabilities that are by their terms subordinated to the
Debentures or any guarantee thereof) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement that releases
the Company or such Restricted Subsidiary from further liability; and
(2) any securities, notes or other obligations received by the Company
or any such Restricted Subsidiary from such transferee that are converted
by the Company or such Restricted Subsidiary into cash within 20 days of
the applicable Asset Sale (to the extent of the cash received).
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or the applicable Restricted Subsidiary may apply such Net Proceeds
to:
(1) reduce any Indebtedness of the Company that constitutes Senior
Debt;
(2) reduce any Indebtedness of any of the Company's Restricted
Subsidiaries;
(3) the acquisition of all or substantially all the assets of a
Permitted Business;
(4) the acquisition of Voting Stock of a Permitted Business from a
Person that is not a Subsidiary of the Company; provided, that, after
giving effect thereto, the Company or its Restricted Subsidiary owns a
majority of such Voting Stock and designates such Permitted Business as a
Restricted Subsidiary; or
(5) the making of a capital expenditure or the acquisition of other
long-term assets that are used or useful in a Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph shall be deemed to constitute
"Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0
----------------
million, the Company shall be required to make an offer to all holders of Senior
Discount Notes and may be required to make such offer to holders of other Senior
Debt of the Company then outstanding (a "Senior Asset Sale Offer") to purchase
-----------------------
the maximum principal amount of the Senior Discount Notes and such other Senior
Debt, if applicable, that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount or
accreted value thereof, as the case may be, plus accrued and unpaid interest to
the date of purchase, in accordance with the procedures set forth in the Senior
Discount Notes Indenture and in the instruments governing such other Senior
Debt. To the extent that the aggregate amount of Senior Discount Notes and such
other Senior Debt tendered pursuant to a Senior Asset Sale Offer is less than
the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A)
-------------------------
such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds
from any subsequent Senior Asset Sale Offers exceeds $3.0 million, the Company
shall be required to make an offer to all Holders of Debentures and all holders
of other senior subordinated Indebtedness of the Company containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the
----------------
maximum principal amount of Debentures and such other senior subordinated
Indebtedness of the Company that may be purchased out of the Remaining Excess
54
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest and Liquidated Damages, if any, due
on the relevant interest payment date), in accordance with the procedures set
forth in this Indenture and such other senior subordinated Indebtedness of the
Company. To the extent that any Remaining Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Debentures and such other senior subordinated Indebtedness
of the Company tendered into such Asset Sale Offer surrendered by Holders
thereof exceeds the amount of Remaining Excess Proceeds, the Trustee shall
select the Debentures and such other senior subordinated Indebtedness to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
The Asset Sale provisions described above shall be applicable whether or
not any other provisions of this Indenture are applicable. The Company shall
comply, to the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations applicable to any
Asset Sale Offer. To the extent that the provisions of any such securities laws
or securities regulations conflict with the provisions of this Section 4.10, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.10 by
virtue thereof.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
---------------------
(1) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion as to the fairness to the Holders
of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of national
standing.
The following items shall not be deemed to be Affiliate Transactions and
therefore shall not be subject to the provisions of the prior paragraph:
55
(1) any employment arrangements with any executive officer of the
Company or a Restricted Subsidiary that is entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and
consistent with compensation arrangements of similarly situated executive
officers at comparable companies engaged in Permitted Businesses;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) payment of directors fees in an aggregate annual amount not to
exceed $25,000 per Person;
(4) Restricted Payments that are permitted by Section 4.07 hereof;
(5) the issuance or sale of Equity Interests (other than Disqualified
Stock) of the Company; and
(6) transactions pursuant to the provisions of the Governance
Agreement, the Rights Agreement, the Stockholders' Agreement, the CTSH
Shareholders' Agreement, the CTI Services Agreement, the CTI Operating
Agreement and the Crown Transition Agreements, as the same are in effect on
the Issue Date.
Section 4.12. [Reserved]
Section 4.13. Business activities.
The Company shall not, and shall not permit any Subsidiary to, engage in
any business other than Permitted Businesses, except to such extent as would not
be material to the Company and its Subsidiaries taken as a whole.
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
existence, and the corporate, partnership or other existence of each of its
Significant Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Significant Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Significant Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Significant Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Debentures.
Section 4.15. Offer to Repurchase Upon Change of Control.
If a Change of Control occurs, each Holder of Debentures shall have the
right to require the Company to repurchase all or any part (but not any
fractional shares) of such Holder's Debentures 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 Senior Exchangeable Preferred Stock repurchased plus accrued and
unpaid interest and Liquidated Damages
56
thereon, if any (subject to the right of Holders of record on the relevant
record date to receive dividends and Liquidated Damages, if any, due on the
relevant dividend payment date), to the date of purchase (the "Change of Control
-----------------
Payment"). Within 30 days following any Change of Control, the Company shall
-------
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Debentures on the
date specified in such notice, which date shall be no earlier than 30 days and
no later than 60 days from the date such notice is mailed (the "Change of
---------
Control Payment Date"), pursuant to the procedures required by this Indenture
--------------------
and described in such notice.
On the Change of Control Payment Date, the Company shall, to the extent
lawful:
(1) accept for payment all Debentures or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Debentures or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Debentures so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Debentures or portions thereof being purchased by the
Company.
The Company shall promptly mail to each Holder of Debentures so tendered
the Change of Control Payment for such Debentures, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new certificate representing the Debentures equal in principal
amount to any unpurchased portion of the Debentures surrendered, if any.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable. The
Company shall comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations
applicable to any Change of Control Offer. To the extent that the provisions of
any such securities laws or securities regulations conflict with the provisions
of this Section 4.15, the Company shall comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under this Section 4.15 by virtue thereof.
The Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Debentures validly tendered and not withdrawn under such
Change of Control Offer.
Section 4.16. [Reserved].
Section 4.17. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company:
(1) shall not, and shall not permit any Restricted Subsidiary of the
Company to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Restricted
57
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company); and
(2) shall not permit any Restricted Subsidiary of the Company to issue
any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company,
unless, in each such case: (a) as a result of such transfer, conveyance, sale,
lease or other disposition or issuance such Restricted Subsidiary no longer
constitutes a Subsidiary and (b) the cash Net Proceeds from such transfer,
conveyance, sale, lease or other disposition or issuance are applied in
accordance with Section 4.10.
Section 4.18. Senior Subordinated Debt.
So long as any Debentures are outstanding, the Company shall not incur any
Indebtedness that is expressly made subordinated in right of payment to any
Senior Debt unless such Indebtedness, by its terms and by the terms of any
agreement or instrument pursuant to which such Indebtedness is outstanding, is
expressly made pari passu with, or subordinate in right of payment to, the
Debentures pursuant to provisions substantially similar to those contained in
this Indenture; provided that the foregoing limitations shall not apply to
distinctions between categories of Senior Debt that exist by reason of any Liens
or Guarantees arising or created in respect of some but not all Senior Debt.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless:
(1) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company) or the entity or Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all the obligations of the Company under the
Debentures and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default exists; and
(4) except in the case of a merger of the Company with or into a
Wholly Owned Restricted Subsidiary of the Company and except in the case of
a merger entered into solely for
58
the purpose of reincorporating the Company in another jurisdiction, the
Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made will, at the time of such transaction after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash
Flow Ratio test set forth in the first paragraph of Section 4.09 hereof.
Section 5.02. Successor Corporation 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 in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company 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 corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, provided, however, that
and the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Debentures except in the case of a sale of 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 is an Event of Default:
(1) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Debentures;
(2) default in payment when due of the principal of or premium, if
any, on the Debentures;
(3) failure by the Company or any of its Subsidiaries for 30 days
after notice to comply with the provisions of Article 5 hereof or failure
by the Company to consummate a Change of Control Offer or Asset Sale Offer
in accordance with the provisions of this Indenture applicable thereto;
(4) failure by the Company or any of its Subsidiaries for 60 days
after notice to comply with any of its other agreements in this Indenture
or the Debentures;
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Significant
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Significant Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, which default (a) is caused by
a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period
59
provided in such Indebtedness on the date of such default (a "Payment
-------
Default") or (b) results in the acceleration of such Indebtedness prior to
-------
its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accellerated, aggregates $20.0 million or more;
(6) failure by the Company or any of its Significant Subsidiaries to
pay final judgments aggregating in excess of $20.0 million, which judgments
are not paid, discharged or stayed for a period of 60 consecutive days; or
(7) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of the
Company or any Significant Subsidiary; or
(iii) orders the liquidation of the Company or any Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in clause
(g) or (h) of Section 6.01 hereof with respect to the Company, any Significant
Subsidiary or any group of Significant Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Debentures may declare all the Debentures to be due and payable immediately.
Upon any such declaration, the principal of, and accrued and unpaid interest and
Liquidated Damages, if any, on such Debentures shall become due and payable
immediately. Notwithstanding the foregoing, if an Event of Default specified in
clause
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(g) or (h) of Section 6.01 hereof occurs with respect to the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, shall be due and payable immediately
without further action or notice. The Holders of a majority in aggregate
principal amount of the then outstanding Debentures by written notice to the
Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.
Section 6.03. 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, if any, interest
and Liquidated Damages, if any, on the Debentures or to enforce the performance
of any provision of the Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Debenture 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.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Debentures by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Debentures (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Debentures may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Debentures may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Debentures or that may
involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Debenture may pursue a remedy with respect to this Indenture
or the Debentures only if:
(a) the Holder of a Debenture gives to the Trustee written notice of a
continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of the then outstanding
Debentures make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Debenture or Holders of Debentures offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Debentures do not give the Trustee a direction
inconsistent with the request.
A Holder of a Debenture may not use this Indenture to prejudice the rights
of another Holder of a Debenture or to obtain a preference or priority over
another Holder of a Debenture.
Section 6.07. Rights of Holders of Debentures to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Debenture to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Debenture, on or after the respective due
dates expressed in the Debenture (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Debentures 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.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Debentures allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Debentures), its creditors or its
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 the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all
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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 Debentures 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 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 of Debentures for amounts due and unpaid on the
Debentures for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Debentures for principal, premium and Liquidated Damages,
if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Debentures 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,
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 Debenture pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Debentures.
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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(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), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such 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.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written 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.
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(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Debentures and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC 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 Debentures, it shall not be
accountable for the Company's use of the proceeds from the Debentures 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
Debentures or any other document in connection with the sale of the Debentures
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 of Debentures a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Debenture, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Debentures.
Section 7.06. Reports by Trustee to Holders of the Debentures.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Debentures remain outstanding, the
Trustee shall mail to the Holders of the Debentures a brief report dated as of
such reporting date that complies with TIA (S) 313(a) (but if no event described
in TIA (S) 313(a) has occurred within the twelve months preceding the reporting
date, no report
65
need be transmitted). The Trustee also shall comply with TIA (S) 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders of
Debentures shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Debentures are listed in accordance with TIA (S) 313(d).
The Company shall promptly notify the Trustee when the Debentures are listed on
any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Debentures on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Debentures. 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(g) or (h) 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 (S) 313(b)(2) to the
extent applicable.
66
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 Debentures of
a majority in principal amount of the then outstanding Debentures 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 Debentures 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 Debentures of at least 10% in principal amount of the then
outstanding Debentures 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 Debenture who has
been a Holder of a Debenture for at least six months, fails to comply with
Section 7.10, such Holder of a Debenture may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Debentures. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
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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 (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
When (i) the Company delivers to the Trustee all outstanding Debentures
(other than Debentures replaced pursuant to Section 2.07) for cancellation or
(ii) all outstanding Debentures have become due and payable, whether at maturity
or as a result of the mailing of a notice of redemption pursuant to Article 3
hereof and the Company irrevocably deposits with the Trustee funds sufficient to
pay at maturity or upon redemption all outstanding Debentures, including
interest thereon to maturity or such redemption date (other than Debentures
replaced pursuant to Section 2.07), and if in either case the Company pays all
other sums payable hereunder by the Company, then this Indenture shall, subject
to the proviso set forth in Section 8.02, cease to be of further effect. The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers' Certificate, at any time, elect to have either Section
8.02 or 8.03 hereof applied to all outstanding Debentures 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 shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Debentures on
the date the conditions set forth below are satisfied (hereinafter, "Legal
-----
Defeasance"). For this purpose, Legal Defeasance means that the Company shall
----------
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Debentures, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Debentures and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Debentures to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such
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Section, payments in respect of the principal of, premium, if any, and interest
and Liquidated Damages on such Debentures when such payments are due, (b) the
Company's obligations with respect to such Debentures under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) 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 shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.13, 4.15, 4.17 and 4.18 hereof with respect to the outstanding
Debentures on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Debentures 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
Debentures shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding
Debentures, the Company 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 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
Debentures shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(d) through 6.01(f) hereof shall not constitute Events of
Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Debentures:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest
and Liquidated Damages on the outstanding Debentures on the stated maturity
or on the applicable redemption date, as the case may be, and the Company
must specify whether the Debentures are being defeased to maturity or to a
particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the Issue Date, there has been a change in
the applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Debentures will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal
69
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Debentures will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Debentures pursuant to
this Article 8 concurrently with such incurrence) or insofar as Sections
6.01(g) or 6.01(h) hereof with respect to the Company are concerned, at any
time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that
on the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
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 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
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Debentures shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Debentures 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 Debentures of all
sums due and to become due thereon in respect of principal, premium, if any,
interest and Liquidated Damages, if any, but such money need not be segregated
from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Debentures.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. 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, if any, or
interest on any Debenture and remaining unclaimed for two years after such
principal, and premium, if any, or interest 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 Debenture shall thereafter,
as a secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Debentures 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, or interest on any Debenture
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Debentures 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 of Debentures.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee
may amend or supplement this Indenture or the Debentures without the consent of
any Holder of a Debenture:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(3) to provide for the assumption of the Company's obligations to the
Holders of the Debentures by a successor to the Company pursuant to Article 5
hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Debentures or that does not adversely affect the
legal rights hereunder of any such Holder; or
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Debentures.
Except as provided below in this Section 9.02, this Indenture (including
Section 3.09, 4.10 and 4.15 hereto) and the Debentures may be amended or
supplemented with the consent of the Holders of a majority of the aggregate
principal amount of the Debentures then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Debentures) or, if no
Debentures are outstanding, the holders of a majority in Liquidation Preference
of the Senior Exchangeable Preferred Stock then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Senior Exchangeable Preferred Stock), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on the Debentures, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision of
this Indenture or the Debentures may be waived with the consent of the Holders
of a majority of the aggregate principal amount of the then outstanding
Debentures voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Debentures) or,
if no Debentures are outstanding, the holders of a majority in Liquidation
Preference of the Senior Exchangeable Preferred Stock then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Senior Exchangeable Preferred Stock).
Section 2.08 hereof shall determine which Debentures are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Debentures as aforesaid,
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and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental Indenture unless such amended or supplemental Indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Debentures
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Debentures 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 Debentures then outstanding voting
as a single class may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Debentures. However, without the
consent of each Holder affected, an amendment or waiver under this Section 9.02
may not (with respect to any Debentures held by a non-consenting Holder):
(1) reduce the principal amount of Debentures whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Debenture or alter or waive any of the provisions with respect to the redemption
(but not any required repurchase in connection with an Asset Sale Offer or
Change of Control Offer) of the Debentures;
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Debenture;
(4) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Debentures (except a rescission of
acceleration of the Debentures by the Holders of at least a majority in
aggregate principal amount of the then outstanding Debentures and a waiver of
the payment default that resulted from such acceleration);
(5) make any Debenture payable in money other than that stated in the
Debentures;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Debentures to receive
payments of principal of, premium, if any, or interest on the Debentures;
(7) waive a redemption payment (but not any payment upon a required
repurchase in connection with an Asset Sale Offer or Change of Control Offer)
with respect to any Debenture; or
(8) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
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Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Debentures shall be
set forth in a 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 Debenture is a continuing consent by the Holder of a Debenture
and every subsequent Holder of a Debenture or portion of a Debenture that
evidences the same debt as the consenting Holder's Debenture, even if notation
of the consent is not made on any Debenture. However, any such Holder of a
Debenture or subsequent Holder of a Debenture may revoke the consent as to its
Debenture 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 Debentures.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The Company in
exchange for all Debentures may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Debentures that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture 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 entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's 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
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Debenture agrees, that
the Indebtedness evidenced by the Debentures is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full in cash or Cash Equivalents (other than Cash Equivalents
of the type referred to in clauses (3) and (4) of the definition thereof) of all
Senior Debt of the Company (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
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Section 10.02. Liquidation; Dissolution; Bankruptcy.
For purposes of this Article 10, a "distribution" may consist of cash,
securities or other property, by set-off or otherwise.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(i) holders of Senior Debt shall be entitled to receive payment in
full in cash or Cash Equivalents (other than Cash Equivalents of the type
referred to in clauses (3) and (4) of the definition thereof) of all
Obligations due in respect of such Senior Debt (including interest after
the commencement of any such proceeding at the rate specified in the
applicable Senior Debt) before Holders of the Debentures shall be entitled
to receive any payment or distribution of any kind or character with
respect to the Debentures (except that Holders of Debentures may receive
(A) Permitted Junior Securities and (B) payments and other distributions
made from any defeasance trust created pursuant to Section 8.01 hereof);
and
(ii) until all Obligations with respect to Senior Debt (as provided in
clause (i) above) are paid in full, any distribution to which Holders would
be entitled but for this Article 10 shall be made to holders of Senior Debt
(except that Holders of Debentures may receive (A) Permitted Junior
Securities and (B) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof), as their
interests may appear.
Section 10.03. Default on Designated Senior Debt.
(a) The Company may not make any payment or distribution in respect of
Obligations with respect to the Debentures and may not acquire any Debentures
for cash or property (other than (A) Permitted Junior Securities and (B)
payments and other distributions made from any defeasance trust created pursuant
to Section 8.01 hereof) until all principal and other Obligations with respect
to the Senior Debt have been paid in full if:
(i) a default in the payment of any principal or other Obligations
with respect to Designated Senior Debt occurs and is continuing beyond any
applicable grace period in the agreement, indenture or other document
governing such Designated Senior Debt; or
(ii) a default, other than a payment default, on Designated Senior
Debt occurs and is continuing that then permits holders of the Designated
Senior Debt to accelerate its maturity immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods and the Trustee receives a
notice of the default (a "Payment Blockage Notice") from a Person who may
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give it pursuant to Section 10.11 hereof. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section unless and until at least 360 days
shall have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment
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Blockage Notice unless such default shall have been cured or waived for a
period of not less than 90 consecutive days.
(b) The Company may and shall resume payments on and distributions in
respect of the Debentures and may acquire them upon:
(i) in the case of a payment default referred to in clause (i) of
Section 10.03(a), the date upon which the default is cured or waived, or
(ii) in the case of a nonpayment default referred to in clause (ii) of
Section 10.03(a) hereof, upon the earliest of (x) the date upon which all
non-payment defaults are cured or waived, (y) 179 days after the applicable
Payment Blockage Notice is received or (z) the date on which the Trustee
receives notice from the holders of such Designated Senior Debt or their
Representative rescinding the Payment Blockage Notice, unless the maturity
of any Designated Senior Debt has been accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.04. Acceleration of Debentures.
If payment of the Debentures is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Debentures at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by
Section 10.03 hereof, such payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to, the holders of Senior Debt as their interests may
appear or their Representative under the indenture or other agreement (if any)
pursuant to which Senior Debt may have been issued as their respective interests
may appear, for application to the payment of all Obligations with respect to
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
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Section 10.06. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Debentures to violate this Article 10, but failure to give such
notice shall not affect the subordination of the Debentures to the Senior Debt
as provided in this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full and until the Debentures are paid in
full, Holders of Debentures shall be subrogated (equally and ratably with all
other Indebtedness and pari passu with the Debentures) to the rights of holders
of Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the Holders of Debentures have been
applied to the payment of Senior Debt. A distribution made under this Article
10 to holders of Senior Debt that otherwise would have been made to Holders of
Debentures is not, as between the Company and Holders, a payment by the Company
on the Debentures.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of Holders of Debentures and
holders of Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and Holders of Debentures, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Debentures in accordance with their terms;
(ii) affect the relative rights of Holders of Debentures and creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(iii) prevent the Trustee or any Holder of Debentures from exercising
its available remedies upon a Default, subject to the rights of holders and
owners of Senior Debt to receive distributions and payments otherwise
payable to Holders of Debentures.
If the Company fails because of this Article 10 to pay principal of or
interest on a Debenture on the due date, the failure is still a Default.
Section 10.09. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Debentures shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
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Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Debentures shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Debentures for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Debentures, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Debentures to violate this Article 10. Only the Company or a Representative
may give the notice. Nothing in this Article 10 shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of Debentures, by the Holder's acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the Representatives are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Debentures.
Section 10.13. Amendments.
The provisions of this Article 10 shall not be amended or modified without
the written consent of the holders of all Senior Debt.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA (S)318(c), the imposed duties shall control.
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt
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requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address
If to the Company:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: 212-474-3700
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
If to the Trustee:
United States Trust Company of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when 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 (S) 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.
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.
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If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders of Debentures with Other Holders of
Debentures.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Debentures. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(a) a statement that the Persons 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, she has or they
have made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Persons, such
condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
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Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Debentures, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Debenture waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the
Debentures.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE DEBENTURES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. Successors.
All agreements of the Company in this Indenture and the Debentures shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.12. 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 11.13. 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.
[Signatures on following page]
81
SIGNATURES
Dated as of December 21, 1998
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Attest:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Administrative Assistant
United States Trust Company of TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Authorized Signatory
82
EXHIBIT A1
(Face of Debenture)
================================================================================
CUSIP/CINS ____________
12 3/4% Senior Subordinated Exchange Debentures due 2010
No. ______ Principal Amount $_____________
CROWN CASTLE INTERNATIONAL CORP.
promises to pay to _________________________________, or registered assigns, the
principal sum of _____________________________________________ Dollars on
December 15, 2010.
Interest Payment Dates: June 15 and December 15, commencing the first such date
following original issuance of the Debentures.
Record Dates: June 1 and December 1
Dated: ________________, _____
Crown Castle International Corp.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
(SEAL)
This is one of the [Global]
Debentures referred to in the
within-mentioned Indenture:
United States Trust Company of TEXAS, N.A.,
as Trustee
By:
------------------------------
================================================================================
A1-1
(Back of Debenture)
12 3/4% Senior Subordinated Exchange Debentures due 2010
[Insert Global Debenture Legend, if applicable pursuant to the provisions
of the Indenture.]
[Insert Private Placement Legend, if applicable pursuant to the provisions
of the Indenture.]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Crown Castle International Corp., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
-------
Debenture at 12 3/4% per annum from the date of original issuance of this
Debenture (or, if this Debenture is issued in a transfer of or exchange for
another Debenture, from the date on which interest was payable with respect to
such other Debenture) until maturity and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company will pay interest and Liquidated Damages, if any, semi-
annually on June 15 and December 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
----------------
Date"); provided that the first such interest payment date shall be the first
----
such date to occur following original issuance of this Debenture. On or prior
to December 15, 2003, the Company may, at its option, pay interest in cash or in
additional Debentures having an aggregate principal amount equal to the amount
of such interest. After December 15, 2003, the Company shall pay interest in
cash only. Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of Debentures. 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 Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on this Debenture
(except defaulted interest) and Liquidated Damages to the Persons who are the
registered Holders of this Debenture at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if it is canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
This Debenture will be payable as to principal, premium and Liquidated Damages,
if any, and interest (in the case of the payment of interest in cash) at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest and Liquidated Damages may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest (in the case of the payment of interest in cash),
premium and Liquidated Damages on, all Global Debentures and all other
Debentures the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided that Liquidated Damages
may be paid through the issuance of additional Debentures having a principal
amount at the time of issuance equal to the amount of Liquidated Damages so
paid. In the case of payment of interest in additional Debentures having an
A1-2
aggregate principal amount equal to the amount of such interest, such additional
Debentures shall be issued and registered in the name of the registered Holder
of the Debenture with respect to which such interest is being paid in the manner
set forth in the first sentence of this paragraph.
3. Paying Agent and Registrar. Initially, United States Trust Company of
Texas, N.A., the Trustee under the Indenture, will 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 Debentures under an Indenture dated
as of December 21, 1998 ("Indenture") between the Company and the Trustee. The
---------
terms of the Debentures 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 (S)(S) 77aaa-77bbbb). The Debentures 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 Debenture
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Debentures are obligations of
the Company limited to $400.0 million in aggregate principal amount, plus
amounts, if any, issued to pay Liquidated Damages on outstanding Debentures as
set forth in Paragraph 2 hereof.
5. Optional Redemption.
(A) EXCEPT AS SET FORTH IN SUBPARAGRAPH (B) OF THIS PARAGRAPH 5, THE
COMPANY SHALL NOT HAVE THE OPTION TO REDEEM THE DEBENTURES PURSUANT TO THIS
SECTION 3.07 PRIOR TO DECEMBER 15, 2003. THEREAFTER, THE COMPANY SHALL HAVE THE
OPTION TO REDEEM THE DEBENTURES, IN WHOLE OR IN PART, AT THE REDEMPTION PRICES
(EXPRESSED AS PERCENTAGES OF PRINCIPAL AMOUNT) SET FORTH BELOW PLUS ACCRUED AND
UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE APPLICABLE
REDEMPTION DATE (SUBJECT TO THE RIGHT OF HOLDERS OF RECORD ON THE RELEVANT
RECORD DATE TO RECEIVE INTEREST AND LIQUIDATED DAMAGES DUE ON THE RELEVANT
INTEREST PAYMENT DATE), IF REDEEMED DURING THE TWELVE-MONTH PERIOD BEGINNING ON
DECEMBER 15 OF THE YEARS INDICATED BELOW:
Year Percentage
---- ----------
2003......................................106.375%
2004......................................104.781%
2005......................................103.188%
2006......................................101.594%
2007 and thereafter.......................100.000%
(B) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (A) OF THIS
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ THE FIRST 36 MONTHS AFTER THE DATE OF ORIGINAL ISSUANCE OF
THE DEBENTURES, THE COMPANY MAY ON ANY ONE OR MORE OCCASIONS REDEEM UP TO 35% OF
THE AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES THEN OUTSTANDING AT A REDEMPTION
PRICE EQUAL TO 112.750% OF THE PRINCIPAL AMOUNT THEREOF ON THE REDEMPTION DATE,
PLUS ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE
REDEMPTION DATE, WITH THE NET CASH PROCEEDS OF ONE OR MORE PUBLIC EQUITY
OFFERINGS AND/OR
A1-3
STRATEGIC EQUITY INVESTMENTS; PROVIDED THAT AT LEAST $130.0 MILLION AGGREGATE
PRINCIPAL AMOUNT OF DEBENTURES REMAINS OUTSTANDING IMMEDIATELY AFTER THE
OCCURRENCE OF SUCH REDEMPTION (EXCLUDING DEBENTURES HELD BY THE COMPANY OR ANY
OF ITS SUBSIDIARIES); AND PROVIDED, FURTHER, THAT SUCH REDEMPTION SHALL OCCUR
WITHIN 60 DAYS OF THE DATE OF THE CLOSING OF SUCH PUBLIC EQUITY OFFERING AND/OR
STRATEGIC EQUITY INVESTMENT.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be required
to make mandatory redemption payments with respect to the Debentures.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of Debentures
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Debentures pursuant
to the offer described below (the "Change of Control Offer") at an offer price
-----------------------
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any (subject to the right of
Holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due on the relevant interest payment date), to the date of
purchase (the "Change of Control Payment"). Within 30 days following any Change
-------------------------
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall commence an offer to all holders of Senior Discount Notes and may
be required to make such offer to holders of other Senior Debt of the Company
then outstanding (a "Senior Asset Sale Offer") to purchase the maximum principal
-----------------------
amount of the Senior Discount Notes and such other Senior Debt, if applicable,
that may be purchased out of the Excess Proceeds, at an offer price in cash in
an amount equal to 100% of the principal amount or accreted value thereof, as
the case may be, plus accrued and unpaid interest to the date of purchase, in
accordance with the procedures set forth in the Senior Discount Notes Indenture
and in the instruments governing such other Senior Debt. To the extent that the
aggregate amount of Senior Discount Notes and such other Senior Debt tendered
pursuant to a Senior Asset Sale Offer is less than the remaining Excess Proceeds
("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess
-------------------------
Proceeds and (B) the Remaining Excess Proceeds from any subsequent Senior Asset
Sale Offers exceeds $3.0 million, the Company shall commence an offer to all
Holders of Debentures and all holders of other senior subordinated Indebtedness
of the Company containing provisions similar to those set forth in the Indenture
with respect to offers to purchase with the proceeds of sales of assets (an
"Asset Sale Offer") to purchase the maximum principal amount of Debentures and
-----------------
such other senior subordinated Indebtedness of the Company that may be purchased
out of the Remaining Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest and
Liquidated Damages, if any, due on the relevant interest payment date), in
accordance with the procedures set forth in the Indenture and such other senior
subordinated Indebtedness of the Company. To the extent that any Remaining
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use such Excess Proceeds for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Debentures and such other
senior subordinated Indebtedness of the
A1-4
Company tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Remaining Excess Proceeds, the Trustee shall select the
Debentures and such other senior subordinated Indebtedness to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero. Holders of Debentures that are the subject of
an offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Debentures purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Debentures.
The Change of Control and Asset Sale provisions described above shall be
applicable whether or not any other provisions of the Indenture are applicable.
The Company shall comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
applicable to any Change of Control Offer or Asset Sale Offer. To the extent
that the provisions of any such securities laws or securities regulations
conflict with the provisions of Section 4.10 or 4.15 of the Indenture, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under Section 4.10 or 4.15
by virtue thereof.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures 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 Debenture or portion of a Debenture
selected for redemption, except for the unredeemed portion of any Debenture
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Debentures for a period of 15 days before a selection of
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Debenture may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Debentures may be amended or supplemented with the consent of
the Holders of a majority of the aggregate principal amount of the Debentures
then outstanding voting as a single class (including, without limitation,
consents obtained in connection with a purchase of or tender offer or exchange
offer for, Debentures) or, if no Debentures are outstanding, the holders of a
majority in Liquidation Preference of the Senior Exchangeable Preferred Stock
then outstanding (including, without limitation, consents obtained in connection
with a purchase of or tender offer or exchange offer for, Senior Exchangeable
Preferred Stock), and any existing default or compliance with any provision of
the Indenture or the Debentures may be waived with the consent of the Holders of
a majority of the aggregate principal amount of the then outstanding Debentures
voting as a single class (including, without limitation, consents obtained in
connection with a purchase of or tender offer or exchange offer for, Debentures)
or,
A1-5
if no Debentures are outstanding, the holders of a majority in Liquidation
Preference of the Senior Exchangeable Preferred Stock then outstanding
(including, without limitation, consents obtained in connection with a purchase
of or tender offer or exchange offer for, Senior Exchangeable Preferred Stock).
Without the consent of any Holder of a Debenture, the Indenture or the
Debentures may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Debentures in addition to or in
place of certificated Debentures, to provide for the assumption of the Company's
obligations to Holders of the Debentures in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to the
Holders of the Debentures or that does not adversely affect the legal rights
under the Indenture of any such Holder, to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest on, or Liquidated Damages with respect
to, the Debentures; (ii) default in payment when due of principal of or premium,
if any, on the Debentures, (iii) failure by the Company or any of its
Subsidiaries for 30 days after notice to comply with Section 4.10 or 4.15 or
Article 5 of the Indenture; (iv) failure by the Company or any of its
Subsidiaries for 60 days after notice to comply with its other agreements in the
Indenture or the Debentures; (v) default under certain other agreements relating
to Indebtedness of the Company which default (a) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default or (b) results in the acceleration of such Indebtedness prior to its
express maturity, in either case the principal amount of such Indebtedness
together with the principal amount of any other such Indebtedness under which
there has been a payment default or the maturity of which has been accelerated,
aggregates $20.0 million or more; (vi) certain final judgments for the payment
of money aggregating in excess of $20.0 million that remain undischarged for a
period of 60 consecutive days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
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 Debentures may declare
all the Debentures to be due and payable. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Debentures will become due and payable without
further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures 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
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures 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 on, or the principal of, the Debentures. 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.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
A1-6
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. Authentication. This Debenture shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the 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).
17. Additional Rights of Holders of Restricted Global Debentures and
Restricted Definitive Debentures. In addition to the rights provided to Holders
of Debentures under the Indenture, Holders of Restricted Global Debentures and
Restricted Definitive Debentures shall have all the rights set forth in the A/B
Exchange Registration Rights Agreement dated as of December 21, 1998, between
the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
------------------------------
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Company will 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:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A1-7
Assignment Form
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
to transfer this Debenture 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 Debenture)
Signature Guarantee.
A1-8
Option of Holder to Elect Purchase
If you want to elect to have this Debenture purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ]Section 4.10 [ ]Section 4.15
If you want to elect to have only part of the Debenture purchased by the
Company pursuant to Section 4.10 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 Debenture)
Tax Identification No:
--------------------------
Signature Guarantee.
A1-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL DEBENTURE
The following exchanges of a part of this Global Debenture for an interest
in another Global Debenture or for a Definitive Debenture, or exchanges of a
part of another Global Debenture or Definitive Debenture for an interest in this
Global Debenture, have been made:
Principal Amount Signature of
Amount of decrease Amount of increase of this Global authorized
in in Principal Debenture officer of
Principal Amount Amount of following such Trustee or
of this Global this Global decrease (or Debenture
Date of Exchange Debenture Debenture increase) Custodian
---------------- --------- --------- --------- ---------
A1-10
EXHIBIT A2
(Face of Regulation S Temporary Global Debenture)
================================================================================
CUSIP/CINS ____________
12 3/4% Senior Subordinated Exchange Debentures due 2010
No. ____ Principal Amount $_____________
CROWN CASTLE INTERNATIONAL CORP.
promises to pay to Cede & Co., or registered assigns, the principal sum of
________________________ Dollars on December 15, 2010.
Interest Payment Dates: June 15 and December 15, commencing the first such date
to occur following original issuance of the Debentures.
Record Dates: June 1 and December 1
Dated:
----------------, ----
CROWN CASTLE INTERNATIONAL CORP.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
[(SEAL)]
This is one of the Global
Debentures referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By:
-------------------------------
================================================================================
A2-1
(Back of Debenture)
12 3/4% Senior Subordinated Exchange Debentures due 2010
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL DEBENTURE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
DEBENTURES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL DEBENTURE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON. HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT.
THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS DEBENTURE) 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 2.07 OF THE INDENTURE, (II) THIS GLOBAL
DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF
ANY, REQUIRED UNDER THE CERTIFICATE OF DESIGNATIONS PURSUANT TO WHICH THIS
SECURITY IS ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A OR REGULATION S THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES
ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
CROWN CASTLE INTERNATIONAL CORP. THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO CROWN
CASTLE INTERNATIONAL CORP. OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL AND
A2-2
EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Crown Castle International Corp., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
-------
Debenture at 12 3/4% per annum from the date of original issuance of this
Debenture (or, if this Debenture is issued in a transfer of or exchange for
another Debenture, from the date on which interest was payable with respect to
such other Debenture) until maturity and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreement referred
to below. The Company will pay interest and Liquidated Damages, if any, semi-
annually on June 15 and December 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
----------------
Date"); provided that the first such interest payment date shall be the first
----
such date to occur following original issuance of this Debenture. On or prior
to December 15, 2003, the Company may, at its option, pay interest in cash or in
additional Debentures having an aggregate principal amount equal to the amount
of such interest. After December 15, 2003, the Company shall pay interest in
cash only. Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of Debentures. 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 Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Until this Regulation S Temporary Global Debenture is exchanged for one or
more Regulation S Permanent Global Debentures, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Debenture shall in all other respects be
entitled to the same benefits as other Debentures under the Indenture.
2. Method of Payment. The Company will pay interest on this Debenture
(except defaulted interest) and Liquidated Damages to the Persons who are the
registered Holders of this Debenture at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if it is canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
This Debenture will be payable as to principal, premium and Liquidated Damages,
if any, and interest (in the case of the payment of interest in cash) at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest and Liquidated Damages may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest (in the case of the payment of interest in cash),
premium and Liquidated Damages on, all Global Debentures and all other
Debentures the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided that Liquidated Damages
may be paid through the issuance of additional Debentures having a principal
amount at the time of issuance equal to the amount
A2-3
of Liquidated Damages so paid. In the case of payment of interest in additional
Debentures having an aggregate principal amount equal to the amount of such
interest, such additional Debentures shall be issued and registered in the name
of the registered Holder of the Debenture with respect to which such interest is
being paid in the manner set forth in the first sentence of this paragraph.
3. Paying Agent and Registrar. Initially, United States Trust Company of
Texas, N.A., the Trustee under the Indenture, will 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 Debentures under an Indenture dated
as of December 21, 1998 ("Indenture") between the Company and the Trustee. The
---------
terms of the Debentures 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 (S)(S) 77aaa-77bbbb). The Debentures 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 Debenture
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Debentures are obligations of
the Company limited to $400.0 million in aggregate principal amount, plus
amounts, if any, issued to pay Liquidated Damages on outstanding Debentures as
set forth in Paragraph 2 hereof.
5. Optional Redemption.
(A) EXCEPT AS SET FORTH IN SUBPARAGRAPH (B) OF THIS PARAGRAPH 5, THE
COMPANY SHALL NOT HAVE THE OPTION TO REDEEM THE DEBENTURES PURSUANT TO THIS
SECTION 3.07 PRIOR TO DECEMBER 15, 2003. THEREAFTER, THE COMPANY SHALL HAVE THE
OPTION TO REDEEM THE DEBENTURES, IN WHOLE OR IN PART, AT THE REDEMPTION PRICES
(EXPRESSED AS PERCENTAGES OF PRINCIPAL AMOUNT) SET FORTH BELOW PLUS ACCRUED AND
UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE APPLICABLE
REDEMPTION DATE (SUBJECT TO THE RIGHT OF HOLDERS OF RECORD ON THE RELEVANT
RECORD DATE TO RECEIVE INTEREST AND LIQUIDATED DAMAGES DUE ON THE RELEVANT
INTEREST PAYMENT DATE), IF REDEEMED DURING THE TWELVE-MONTH PERIOD BEGINNING ON
DECEMBER 15 OF THE YEARS INDICATED BELOW:
Year Percentage
---- ----------
2003......................................106.375%
2004......................................104.781%
2005......................................103.188%
2006......................................101.594%
2007 and thereafter.......................100.000%
(B) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (A) OF THIS
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ THE FIRST 36 MONTHS AFTER THE DATE OF ORIGINAL ISSUANCE OF
THE DEBENTURES, THE COMPANY MAY ON ANY ONE OR MORE OCCASIONS REDEEM UP TO 35% OF
THE AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES THEN OUTSTANDING AT A REDEMPTION
PRICE EQUAL TO 112.750% OF THE PRINCIPAL AMOUNT THEREOF ON THE REDEMPTION DATE,
PLUS ACCRUED AND UNPAID INTEREST AND LIQUIDATED DAMAGES THEREON, IF ANY, TO THE
REDEMPTION DATE,
A2-4
WITH THE NET CASH PROCEEDS OF ONE OR MORE PUBLIC EQUITY OFFERINGS AND/OR
STRATEGIC EQUITY INVESTMENTS; PROVIDED THAT AT LEAST $130.0 MILLION AGGREGATE
PRINCIPAL AMOUNT OF DEBENTURES REMAINS OUTSTANDING IMMEDIATELY AFTER THE
OCCURRENCE OF SUCH REDEMPTION (EXCLUDING DEBENTURES HELD BY THE COMPANY OR ANY
OF ITS SUBSIDIARIES); AND PROVIDED, FURTHER, THAT SUCH REDEMPTION SHALL OCCUR
WITHIN 60 DAYS OF THE DATE OF THE CLOSING OF SUCH PUBLIC EQUITY OFFERING AND/OR
STRATEGIC EQUITY INVESTMENT.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be required
to make mandatory redemption payments with respect to the Debentures.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of Debentures
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Debentures pursuant
to the offer described below (the "Change of Control Offer") at an offer price
-----------------------
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any (subject to the right of
Holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due on the relevant interest payment date), to the date of
purchase (the "Change of Control Payment"). Within 30 days following any Change
-------------------------
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall commence an offer to all holders of Senior Discount Notes and may
be required to make such offer to holders of other Senior Debt of the Company
then outstanding (a "Senior Asset Sale Offer") to purchase the maximum principal
-----------------------
amount of the Senior Discount Notes and such other Senior Debt, if applicable,
that may be purchased out of the Excess Proceeds, at an offer price in cash in
an amount equal to 100% of the principal amount or accreted value thereof, as
the case may be, plus accrued and unpaid interest to the date of purchase, in
accordance with the procedures set forth in the Senior Discount Notes Indenture
and in the instruments governing such other Senior Debt. To the extent that the
aggregate amount of Senior Discount Notes and such other Senior Debt tendered
pursuant to a Senior Asset Sale Offer is less than the remaining Excess Proceeds
("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess
-------------------------
Proceeds and (B) the Remaining Excess Proceeds from any subsequent Senior Asset
Sale Offers exceeds $3.0 million, the Company shall commence an offer to all
Holders of Debentures and all holders of other senior subordinated Indebtedness
of the Company containing provisions similar to those set forth in the Indenture
with respect to offers to purchase with the proceeds of sales of assets (an
"Asset Sale Offer") to purchase the maximum principal amount of Debentures and
-----------------
such other senior subordinated Indebtedness of the Company that may be purchased
out of the Remaining Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest and
Liquidated Damages, if any, due on the relevant interest payment date), in
accordance with the procedures set forth in the Indenture and such other senior
subordinated Indebtedness of the Company. To the extent that any Remaining
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use such Excess Proceeds for any purpose not otherwise prohibited by the
Indenture.
A2-5
If the aggregate principal amount of Debentures and such other senior
subordinated Indebtedness of the Company tendered into such Asset Sale Offer
surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds,
the Trustee shall select the Debentures and such other senior subordinated
Indebtedness to be purchased on a pro rata basis. Upon completion of such offer
to purchase, the amount of Excess Proceeds shall be reset at zero. Holders of
Debentures that are the subject of an offer to purchase will receive an Asset
Sale Offer from the Company prior to any related purchase date and may elect to
have such Debentures purchased by completing the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Debentures.
The Change of Control and Asset Sale provisions described above shall be
applicable whether or not any other provisions of the Indenture are applicable.
The Company shall comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
applicable to any Change of Control Offer or Asset Sale Offer. To the extent
that the provisions of any such securities laws or securities regulations
conflict with the provisions of Section 4.10 or 4.15 of the Indenture, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under Section 4.10 or 4.15
by virtue thereof.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures 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 Debenture or portion of a Debenture
selected for redemption, except for the unredeemed portion of any Debenture
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Debentures for a period of 15 days before a selection of
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
This Regulation S Temporary Global Debenture is exchangeable in whole or in
part for one or more Global Debentures only (i) on or after the termination of
the 40-day restricted period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Debenture for one or more Global Debentures, the
Trustee shall cancel this Regulation S Temporary Global Debenture.
10. Persons Deemed Owners. The registered Holder of a Debenture may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Debentures may be amended or supplemented with the consent of
the Holders of a majority of the aggregate principal amount of the Debentures
then outstanding voting as a single class (including,
A2-6
without limitation, consents obtained in connection with a purchase of or tender
offer or exchange offer for, Debentures) or, if no Debentures are outstanding,
the holders of a majority in Liquidation Preference of the Senior Exchangeable
Preferred Stock then outstanding (including, without limitation, consents
obtained in connection with a purchase of or tender offer or exchange offer for,
Senior Exchangeable Preferred Stock), and any existing default or compliance
with any provision of the Indenture or the Debentures may be waived with the
consent of the Holders of a majority of the aggregate principal amount of the
then outstanding Debentures voting as a single class (including, without
limitation, consents obtained in connection with a purchase of or tender offer
or exchange offer for, Debentures) or, if no Debentures are outstanding, the
holders of a majority in Liquidation Preference of the Senior Exchangeable
Preferred Stock then outstanding (including, without limitation, consents
obtained in connection with a purchase of or tender offer or exchange offer for,
Senior Exchangeable Preferred Stock). Without the consent of any Holder of a
Debenture, the Indenture or the Debentures may be amended or supplemented to
cure any ambiguity, defect or inconsistency, to provide for uncertificated
Debentures in addition to or in place of certificated Debentures, to provide for
the assumption of the Company's obligations to Holders of the Debentures in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Debentures or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest on, or Liquidated Damages with respect
to, the Debentures; (ii) default in payment when due of principal of or premium,
if any, on the Debentures, (iii) failure by the Company or any of its
Subsidiaries for 30 days after notice to comply with Section 4.10 or 4.15 or
Article 5 of the Indenture; (iv) failure by the Company or any of its
Subsidiaries for 60 days after notice to comply with its other agreements in the
Indenture or the Debentures; (v) default under certain other agreements relating
to Indebtedness of the Company which default (a) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default or (b) results in the acceleration of such Indebtedness prior to its
express maturity, in either case the principal amount of such Indebtedness
together with the principal amount of any other such Indebtedness under which
there has been a payment default or the maturity of which has been accelerated,
aggregates $20.0 million or more; (vi) certain final judgments for the payment
of money aggregating in excess of $20.0 million that remain undischarged for a
period of 60 consecutive days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
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 Debentures may declare
all the Debentures to be due and payable. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Debentures will become due and payable without
further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures 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
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures 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 on, or the principal of, the Debentures. The
Company is required to deliver to the Trustee annually a statement regarding
A2-7
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.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. Authentication. This Debenture shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the 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).
17. Additional Rights of Holders of Restricted Global Debentures and
Restricted Definitive Debentures. In addition to the rights provided to Holders
of Debentures under the Indenture, Holders of Restricted Global Debentures and
Restricted Definitive Debentures shall have all the rights set forth in the A/B
Exchange Registration Rights Agreement dated as of December 21, 1998, between
the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
------------------------------
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Company will 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:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A2-8
Assignment Form
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
to transfer this Debenture on the books of the Company. The agent June
substitute another to act for him.
--------------------------------------------------------------------------------
Date:
----------------
Your Signature:
-----------------------
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee.
A2-9
Option of Holder to Elect Purchase
If you want to elect to have this Debenture purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[ ]Section 4.10 [ ]Section 4.15
If you want to elect to have only part of the Debenture purchased by the
Company pursuant to Section 4.10 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 Debenture)
Tax Identification No.:
--------------
Signature Guarantee.
A2-10
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL DEBENTURE
The following exchanges of a part of this Regulation S Temporary Global
Debenture for an interest in another Global Debenture, or of other Restricted
Global Debentures for an interest in this Regulation S Temporary Global
Debenture, have been made:
Principal Amount
Amount of of this
decrease in Amount of increase Global Debenture Signature of
Principal Amount in Principal Amount following such authorized officer
of this Global of this Global decrease (or of Trustee or
Date of Exchange Debenture Debenture increase) Debenture Custodian
---------------- --------- --------- --------- -------------------
A2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 12 3/4% Senior Subordinated Exchange Debentures due 2010
--------------------------------------------------------
Reference is hereby made to the Indenture, dated as of December 21, 1998
(the "Indenture"), between Crown Castle International Corp., as issuer (the
---------
"Company"), and United States Trust Company of Texas, N.A., as trustee.
--------
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
----------
Debenture[s] or interest in such Debenture[s] specified in Annex A hereto, in
the principal amount of $___________ in such Debenture[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
--------- ----------
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or a Definitive Debenture Pursuant to Rule 144A. The
---------------------------------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
---------- ---
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Debenture is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Debenture 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 Debenture will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or the Definitive Debenture and in the Indenture and the
Securities Act.
2. [ ] Check if Transferee will take delivery of a beneficial interest in the
----------------------------------------------------------------------
Temporary Regulation S Global Debenture, the Regulation S Global Debenture or a
-------------------------------------------------------------------------------
Definitive Debenture pursuant to Regulation S. The Transfer is being effected
---------------------------------------------
pursuant to and in accordance with Rule 903
B-1
or Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive
Debenture will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Debenture, the
Temporary Regulation S Global Debenture and/or the Definitive Debenture and in
the Indenture and the Securities Act.
3. [ ] Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------
interest in a ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or a Definitive Debenture 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 Debentures and
Restricted Definitive Debentures 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.
4. [ ] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Debenture or of an Unrestricted Definitive Debenture.
(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
B-2
Definitive Debenture will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Debentures, on Restricted Definitive Debentures 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 Debenture will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Debentures, on Restricted Definitive Debentures 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 Debenture will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Debentures or Restricted Definitive Debentures 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: ,
----------- -----------
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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 Debenture (CUSIP _________), or
(ii) [ ] Regulation S Global Debenture (CUSIP _________), or
(b) [ ] a Restricted Definitive Debenture.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Debenture (CUSIP ________), or
(ii) [ ] Regulation S Global Debenture (CUSIP ________), or
(iii) [ ] Unrestricted Global Debenture (CUSIP ________); or
(b) [ ] a Restricted Definitive Debenture; or
(c) [ ] an Unrestricted Definitive Debenture,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 12 3/4% Senior Subordinated Exchange Debentures due 2010
-------------------------------------------------------------
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of December 21, 1998
(the "Indenture"), between Crown Castle International Corp., as issuer (the
---------
"Company"), and United States Trust Company of Texas, N.A., as trustee.
--------
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Debenture[s]
-----
or interest in such Debenture[s] specified herein, in the principal amount of
$____________ in such Debenture[s] or interests (the "Exchange"). In connection
--------
with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Debentures or Beneficial Interests in a
Restricted Global Debenture for Unrestricted Definitive Debentures or Beneficial
Interests in an Unrestricted Global Debenture
(a) [ ] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Debenture to beneficial interest in an Unrestricted Global Debenture. In
---------------------------------------------------------------------------
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Debenture for a beneficial interest in an Unrestricted Global Debenture
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 Debentures and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
--------------
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Debenture 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 Debenture to Unrestricted Definitive Debenture. In connection with the
-----------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Debenture for
an Unrestricted Definitive Debenture, the Owner hereby certifies (i) the
Definitive Debenture 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
C-1
the Restricted Global Debentures 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 Debenture 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 Debenture to
------------------------------------------------------------
beneficial interest in an Unrestricted Global Debenture. In connection with the
-------------------------------------------------------
Owner's Exchange of a Restricted Definitive Debenture for a beneficial interest
in an Unrestricted Global Debenture, 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 Debentures 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 Debenture to
----------------------------------------------------------------
Unrestricted Definitive Debenture. In connection with the Owner's Exchange of a
---------------------------------
Restricted Definitive Debenture for an Unrestricted Definitive Debenture, the
Owner hereby certifies (i) the Unrestricted Definitive Debenture 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 Debentures 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
Debenture is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. Exchange of Restricted Definitive Debentures or Beneficial Interests in
Restricted Global Debentures for Restricted Definitive Debentures or Beneficial
Interests in Restricted Global Debentures
(a) [ ] Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------
Global Debenture to Restricted Definitive Debenture. In connection with the
---------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Debenture for
a Restricted Definitive Debenture with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Debenture 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 Debenture issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Debenture and in the Indenture and the Securities Act.
(b) [ ] Check if Exchange is from Restricted Definitive Debenture to
------------------------------------------------------------
beneficial interest in a Restricted Global Debenture. In connection with the
----------------------------------------------------
Exchange of the Owner's Restricted Definitive Debenture for a beneficial
interest in the [CHECK ONE] ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Regulation S Global
Debenture, 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 Debentures 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
C-2
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Debenture
and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
-----------------------------------------------
[Insert Name of Owner]
By:
--------------------------------------------
Name:
Title:
Dated: ,
---------------- ----
C-4