EXHIBIT 4.1
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▇▇▇▇▇▇ HOLDINGS, INC.
AS ISSUER
AMERITEL PAY PHONES, INC.
▇▇▇▇▇▇ TELECOMMUNICATIONS CORPORATION
▇▇▇▇▇▇ TELECOMMUNICATIONS OF CAROLINA, INC.
AND
▇▇▇▇▇▇ STC, INC.
AS SUBSIDIARY GUARANTORS
________________________________________
$115,000,000
11% SENIOR NOTES DUE 2007
SERIES A AND SERIES B
________________________________________
___________________
INDENTURE
DATED AS OF JUNE 27, 1997
___________________
U.S. Trust Company of Texas, N.A.
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)................................................... 7.03; 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)................................................ N.A.
(b)(2)................................................ 7.06; 7.07
(c)................................................... 7.06; 11.02
(d)................................................... 7.06
314 (a)................................................... 4.03; 11.05
(b)................................................... N.A.
(c)(1)................................................ 11.04
(c)(2)................................................ 11.04
(c)(3)................................................ N.A.
(d)................................................... N.A.
(e)................................................... 11.05
(f)................................................... N.A.
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)................................................... N.A.
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
Section 1.01. Definitions............................................. 1
Section 1.02. Other Definitions.......................................14
Section 1.03. Incorporation by Reference of Trust Indenture Act.......15
Section 1.04. Rules of Construction...................................15
ARTICLE 2
THE SENIOR NOTES
Section 2.01. Form and Dating.........................................15
Section 2.02. Execution and Authentication............................17
Section 2.03. Registrar and Paying Agent..............................18
Section 2.04. Paying Agent to Hold Money in Trust.....................18
Section 2.05. Holder Lists............................................18
Section 2.06. Transfer and Exchange...................................19
Section 2.07. Replacement Senior Notes................................26
Section 2.08. Outstanding Senior Notes................................26
Section 2.09. Treasury Senior Notes...................................27
Section 2.10. Temporary Senior Notes..................................27
Section 2.11. Cancellation............................................27
Section 2.12. Defaulted Interest......................................28
Section 2.13. Record Date.............................................28
Section 2.14. Computation of Interest.................................28
Section 2.15. CUSIP Number............................................28
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee......................................28
Section 3.02. Selection of Senior Notes to be Redeemed or Purchased...29
Section 3.03. Notice of Redemption....................................29
Section 3.04. Effect of Notice of Redemption..........................30
Section 3.05. Deposit of Redemption or Purchase Price.................30
Section 3.06. Senior Notes Redeemed in Part...........................31
Section 3.07. Optional Redemption.....................................31
Section 3.08. Mandatory Redemption....................................31
Section 3.09. Repurchase Offers.......................................31
ARTICLE 4
COVENANTS
Section 4.01. Payment of Senior Notes.................................33
Section 4.02. Maintenance of Office or Agency.........................34
Section 4.03. SEC Reports.............................................34
Section 4.04. Compliance Certificate..................................35
Section 4.05. Taxes...................................................35
Section 4.06. Stay, Extension and Usury Laws..........................36
Section 4.07. Limitation on Restricted Payments.......................36
Section 4.08. Limitation on Incurrence of Indebtedness and
Issuance of Preferred Stock...........................38
Section 4.09. Limitation on Asset Sales...............................40
Section 4.10. Limitation on Liens.....................................41
Section 4.11. Limitation on Transactions With Affiliates..............41
Section 4.12. Limitation on Sale and Leaseback Transactions...........41
Section 4.13. Limitation on Dividends and Other Payment
Restrictions Subsidiaries.............................42
Section 4.14. Limitation on Capital Stock of Restricted Subsidiaries..42
Section 4.15. Offer to Purchase Upon Change of Control................43
Section 4.16. Corporate Existence.....................................43
Section 4.17. Additional Subsidiary Guarantees........................44
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.................44
Section 5.02. Successor Corporation Substituted.......................45
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.......................................45
Section 6.02. Acceleration............................................47
Section 6.03. Other Remedies..........................................48
Section 6.04. Waiver of Past Defaults.................................48
Section 6.05. Control by Majority.....................................48
Section 6.06. Limitation on Suits.....................................48
Section 6.07. Rights of Holders of Senior Notes to Receive Payment....49
Section 6.08. Collection Suit by Trustee..............................49
Section 6.09. Trustee May File Proofs of Claim........................49
Section 6.10. Priorities..............................................50
Section 6.11. Undertaking for Costs...................................50
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.......................................50
Section 7.02. Rights of Trustee.......................................51
Section 7.03. Individual Rights of Trustee............................52
Section 7.04. Trustee's Disclaimer....................................53
Section 7.05. Notice of Defaults......................................53
Section 7.06. Reports by Trustee to Holders of the Senior Notes.......53
Section 7.07. Compensation and Indemnity..............................53
Section 7.08. Replacement of Trustee..................................54
Section 7.09. Successor Trustee by Merger, etc........................55
ii
Section 7.10. Eligibility; Disqualification...........................55
Section 7.11. Preferential Collection of Claims Against The Company...55
Section 7.12. Other Capacities........................................56
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance............................................56
Section 8.02. Legal Defeasance and Discharge..........................56
Section 8.03. Covenant Defeasance.....................................56
Section 8.04. Conditions to Legal or Covenant Defeasance..............57
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.........58
Section 8.06. Repayment to The Company................................59
Section 8.07. Reinstatement...........................................59
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of the Senior Notes..........60
Section 9.02. With Consent of Holders of Senior Notes.................60
Section 9.03. Compliance with Trust Indenture Act.....................62
Section 9.04. Revocation and Effect of Consents.......................62
Section 9.05. Notation on or Exchange of Senior Notes.................62
Section 9.06. Trustee to Sign Amendments, etc.........................62
ARTICLE 10
GUARANTEE OF SENIOR NOTES
Section 10.01. Subsidiary Guarantees...................................63
Section 10.02. Execution and Delivery of Subsidiary Guarantee..........64
Section 10.03. Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms......................................64
Section 10.04. Releases Following Sale of Assets.......................65
Section 10.05. Limitation on Subsidiary Guarantor Liability............65
Section 10.06. "Trustee" to Include Paying Agent.......................65
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls............................66
Section 11.02. Notices.................................................66
Section 11.03. Communication by Holders of Senior Notes with
Other Holders of Senior Notes.........................67
Section 11.04. Certificate and Opinion as to Conditions Precedent......67
Section 11.05. Statements Required in Certificate or Opinion...........67
Section 11.06. Rules by Trustee and Agents.............................68
Section 11.07. No Personal Liability of Directors, Officers,
Employees and Stockholders............................68
Section 11.08. Governing Law...........................................68
Section 11.09. No Adverse Interpretation of Other Agreements...........68
Section 11.10. Successors..............................................68
iii
Section 11.11. Severability............................................68
Section 11.12. Counterpart Originals...................................68
Section 11.13. Table of Contents, Headings, etc........................69
iv
INDENTURE, dated as of June 27, 1997, among ▇▇▇▇▇▇ Holdings, Inc., a
Delaware corporation (the "Company"), AmeriTel Pay Phones, Inc., a Missouri
corporation ("AmeriTel"), ▇▇▇▇▇▇ Telecommunications Corporation, an Alabama
corporation ("▇▇▇▇▇▇ Telecommunications"), ▇▇▇▇▇▇ Telecommunications of
Carolina, Inc., an Alabama corporation ("▇▇▇▇▇▇ of Carolina"), ▇▇▇▇▇▇ STC, Inc.,
a Delaware corporation ("▇▇▇▇▇▇ STC") (each of AmeriTel, ▇▇▇▇▇▇
Telecommunications, ▇▇▇▇▇▇ of Carolina and ▇▇▇▇▇▇ STC, a "Subsidiary Guarantor"
and together, the "Subsidiary Guarantors"), and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the holders
of the Company's 11% Senior Notes due 2007, Series A (the "Series A Senior
Notes") and the Company's 11% Senior Notes due 2007, Series B (the "Series B
Senior Notes" and, together with the Series A Senior Notes, the "Senior Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a permanent global senior note that contains the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 3 to the form of the Senior Note attached hereto as Exhibit A-1, and
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that is deposited with the Senior Note Custodian and registered in the name of
the Depository, representing a series of Senior Notes sold to U.S. Persons in
reliance on Rule 144A and to Institutional Accredited Investors in reliance on
another exemption from the registration requirements of the Securities Act.
"Acquired Indebtedness" means, with respect to any specified Person, (i)
Indebtedness 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 (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Additional Interest" means all additional interest then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), 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 securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent, co-registrar, authenticating
agent or Senior Note Custodian.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depository that apply to such transfer and exchange.
1
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory or equipment in the ordinary course of
business consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.15 hereof, and/or the provisions of Section 5.01 hereof
and not by the provisions of Section 4.09 hereof), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $100,000 or (b) for net proceeds in excess of $100,000, and
(ii) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Restricted Subsidiaries whether in a
single transaction or a series of related transactions. Notwithstanding the
foregoing: (i) any simultaneous exchanges of telephones and related contracts
and equipment of the Company or any Restricted Subsidiaries for telephones and
related contracts and equipment of another Person with equivalent fair market
value (provided that the fair market value of telephones and related contracts
and equipment so exchanged in any fiscal year shall not exceed 10% of the total
assets of the Company on a consolidated basis), (ii) a transfer of assets by the
Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary,
(iii) an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary to
the Company or to another Wholly Owned Restricted Subsidiary, and (iv) a
Restricted Payment that is permitted by Section 4.07 hereof, in each case, will
not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or any
authorized committee of such board of directors.
"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 (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited), and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than 365
days from the date of acquisition, (iii) certificates of deposit and eurodollar
time deposits with maturities of 365 days or less from the date of acquisition,
bankers' acceptances with maturities not exceeding 365 days and overnight bank
deposits, in each case with any commercial banking institution that is a lender
under the Senior Credit Facilities or a member of the Federal Reserve System
having capital and surplus in excess of $500 million, (iv) repurchase
obligations with a term of not more than 365 days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial
2
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper rated at least P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. or at
least A-1 by Standard & Poor's Corporation and in each case maturing within nine
months after the date of acquisition, and (vi) money market funds which invest
substantially all of their assets in instruments of the types described in
clauses (i) through (v) above.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following: (i) 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 the Principals or their Related Parties; (ii) the
adoption of a plan relating to the liquidation or dissolution of the Company;
(iii) 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); or (iv) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors. For purposes of this
definition, any transfer of an equity interest of an entity that was formed for
the purpose of acquiring Voting Stock of the Company will be deemed to be a
transfer of such portion of such Voting Stock as corresponds to the portion of
the equity of such entity that has been so transferred.
"Commission" means the Securities and Exchange Commission.
"Company" means ▇▇▇▇▇▇ Holdings, Inc., a Delaware corporation.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) 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 (iii) 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, imputed interest with
respect to Attributable Debt, 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 (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any such non-cash
expenses to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of 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 (v)
non-cash items increasing such Consolidated Net Income for such period, in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation and amortization and other non-cash expenses of, a
Subsidiary of the referent Person shall be added to Consolidated Net Income to
compute Consolidated Cash Flow only to the extent (and in same proportion) that
the Net Income of such Subsidiary
3
was included in calculating the Consolidated Net Income of such Person and only
if a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior governmental approval
(that has not been obtained), and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.
"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 (i) the Net Income (but not loss) of any Person 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 Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, and (iv) the cumulative effect of a change in accounting principles
shall be excluded.
"Consulting and Strategic Services Agreement" means that certain Consulting
and Strategic Services Agreement between the Company and EUF ▇▇▇▇▇▇, ▇.▇., dated
as of December 27, 1996.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors for a period of two consecutive years (or on the date of this
Indenture if less than two years have elapsed since the date of Indenture) or
(ii) 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.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Corporate Trust Department.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Definitive Senior Notes" means Senior Notes that are in the form of
Exhibit A-1 attached hereto (but without including the text referred to in
-----------
footnotes 1 and 3 thereto).
"Depository" means, with respect to the Senior Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Senior Notes, until a successor shall have
been appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depository" shall mean or include such successor.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature; provided that only the
portion of Capital Stock which so matures or is mandatorily redeemable, is so
convertible or exchangeable or is so redeemable at the option of the holder
thereof prior to such final maturity date will be deemed to be Disqualified
Stock; provided, however, that preferred stock of the Company that is
4
issued with the benefit of provisions requiring a change of control offer to be
made for such Capital Stock in the event of a Change of Control of the Company,
which provisions have substantially the same effect as the provisions of Section
4.15 hereof will not be deemed to be Disqualified Stock solely by virtue of such
provisions.
"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).
"Equity Offering" means any (i) issuance of common stock or preferred stock
by the Company (excluding Disqualified Stock) that is registered pursuant to the
Securities Act, other than issuances registered on Form S-8 and issuances
registered on Form S-4, and (ii) any private issuance of common stock or
preferred stock of the Company (excluding Disqualified Stock), other than
issuances of common stock pursuant to employee benefit plans of the Company or
otherwise as compensation to employees of the Company, in each case generating
aggregate gross proceeds to the Company of at least $25.0 million.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, the Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to Holders to exchange
Series B Senior Notes for Series A Senior Notes.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Existing Credit Facility" means that certain Credit Agreement, dated as of
December 27, 1996, among the Company and the lenders from time to time parties
thereto and Canadian Imperial Bank of Commerce, as agent for such lenders,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended or
modified through the date hereof.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Existing Credit Facility) in
existence on the date hereof, until such amounts are repaid.
"Existing Preferred Stock" means the Company's Senior Preferred Stock
issued and outstanding as of the Issuance Date.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense (including
capitalized interest) of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued (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) and (ii) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such Subsidiary Guarantee or Lien is called upon) and (iii) the
product of (A) all dividend payments, whether or not in cash, on any series of
preferred stock of such Person, other than dividend payments on Equity Interests
payable solely in Equity Interests (other than Disqualified Stock), times (B) a
fraction, the numerator of which is one
5
and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal, in
each case, on a consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, 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 four-quarter 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 four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"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 date hereof.
"Global Note" means, individually and collectively, the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note and the 144A
Global Note.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof.
"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, letters of credit and
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 (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Senior Note is registered.
6
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing 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) 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 that does not require current payments
of interest, 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 an interest through a
Participant.
"Initial Purchaser" means CIBC Wood Gundy Securities Corp.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"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 Restricted Subsidiary
of the Company such that, 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
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.07 hereof. Investments will exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal corporate
trust office of the Trustee is located 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 shall be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"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).
"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,
7
(i) any gain (but not loss), together with any related provision for taxes on
such gain (but not loss), realized in connection with any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions)
and (ii) 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 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, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than indebtedness under the Senior Credit Facilities) secured by a Lien
on the asset or assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) 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; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) 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.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offer and sale of the Senior Notes as contemplated by
the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum, dated June 24, 1997,
relating to the Company's offering and placement of the Senior Notes.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary 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 11.04
hereof.
"Opinion of Counsel" means a written 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 (a) with respect to the Senior Notes, any
Indebtedness which ranks pari passu in right of payment to the Senior Notes and
(b) with respect to any Subsidiary Guarantee, any Indebtedness which ranks pari
passu in right of payment to such Subsidiary Guarantee.
8
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company that is a Subsidiary Guarantor
and that is engaged in the same or a similar line of business as the Company and
its Restricted Subsidiaries were engaged in on the date hereof; (b) any
Investment in Cash Equivalents; (c) 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 Wholly Owned Restricted Subsidiary of the
Company and a Subsidiary Guarantor that is engaged in the same or a similar line
of business as the Company and its Restricted Subsidiaries were engaged in on
the date hereof or (ii) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company that is a Subsidiary Guarantor and that is engaged in the same or a
similar line of business as the Company and its Restricted Subsidiaries were
engaged in on the date hereof; (d) any 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 4.09 hereof; (e) any Investment in the same or
substantially similar line of business as the Company or any of its Restricted
Subsidiaries acquired solely in exchange for Equity Interests (other than
Disqualified Stock) of the Company; (f) Hedging Obligations permitted to be
incurred under the covenant described above under Section 4.08 hereof; and (g)
other Investments in any Person having an aggregate fair market value (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (g) that are at the time outstanding, not to exceed
$2.0 million.
"Permitted Liens" means (i) Liens securing Senior Indebtedness of the
Company and any Subsidiary Guarantor that was permitted by the terms of this
Indenture to be incurred; (ii) Liens in favor of the Company or any Wholly Owned
Restricted Subsidiary of the Company; (iii) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the Company
or any Restricted Subsidiary of the Company; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company; (iv) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such
acquisition; (v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (vi) purchase money security
interests on any property acquired by the Company or any Subsidiary in the
ordinary course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such property;
provided that (a) any such Lien attached to such property concurrently with or
within 90 days after the acquisition thereof, (b) such Lien attaches solely to
the property so acquired in such transaction, (c) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such property
and (d) the Indebtedness secured by such purchase money security interests is
otherwise permitted by Section 4.08 hereof; (vii) Liens existing on the date of
this Indenture; (viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (ix) Liens on assets of
Unrestricted Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries; (x) Liens arising under this Indenture in favor of the Trustee or
any predecessor Trustee; and (xi) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with respect
to obligations that do not exceed $2.0 million at any one time outstanding and
that (a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary course
of business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary.
9
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accreted value, if applicable) of,
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date no earlier 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 being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) 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, except that the Company may incur Permitted
Refinancing Indebtedness to extend, refinance, renew, replace, defease or
refund, Indebtedness of any Wholly Owned Restricted Subsidiary of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Principals" means (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇; (iii) ▇▇▇▇ ▇.
▇▇▇▇▇▇▇; (iv) ▇▇▇▇▇ ▇. ▇▇▇▇▇; (v) CIBC Wood Gundy Ventures, Inc.; (vi) Onyx
▇▇▇▇▇▇ Partners, L.P.; (vii) Regent Capital Equity Partners, L.P.; (viii) ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇; or (ix) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
"Private Placement Legend" means the legend initially set forth on the
Senior Notes in the form set forth in Section 2.06(f) hereof.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date hereof, by and among the Company, the Subsidiary Guarantors
and the Initial Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global senior note
that contains the paragraph referred to in footnote 1 and the additional
schedule referred to in footnote 3 to the form of the Senior Note attached
hereto as Exhibit A-1, and that is deposited with the Senior Note Custodian and
-----------
registered in the name of the Depository, representing a series of Senior Notes
sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary global senior
note in the form of the Senior Note attached hereto as Exhibit A-2 that is
-----------
deposited with the Senior Note Custodian and registered in the name of the
Depository, representing a series of Senior Notes sold in reliance on Regulation
S.
10
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal; (B) or trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
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 (A); or (C) the estate of the Principal
until such estate is distributed pursuant to such Principal's will or applicable
state law.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the 144A Global Note or the Regulation S
Global Note.
"Restricted Global Notes" means the 144A Global Note and the Regulation S
Global Note, each of which shall bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facilities" means, collectively, (i) that certain revolving
senior credit facility to be entered into subsequent to the date hereof on the
terms described in the Offering Memorandum (sometimes hereinafter referred to as
the "Senior Credit Facility"), and (ii) a senior credit facility to be entered
into subsequent to the date hereof for permitted acquisitions by the Company or
its Restricted Subsidiaries on the terms described in the Offering Memorandum,
in each case, by and among the Company, the subsidiary guarantors named therein
and the lenders from time to time parties thereto and Canadian Imperial Bank of
Commerce, as agent for such lenders, 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 Indebtedness" means all Indebtedness of the Company or any
Subsidiary Guarantors that is not, by its terms, subordinated in right of
payment to the Notes.
"Senior Notes" means the Series A Senior Notes and the Series B Senior
Notes.
"Senior Note Custodian" means the Trustee, as custodian for the Depository
with respect to the Senior Notes in global form, or any successor entity
thereto.
"Series A Senior Notes" means the Company's 11% Senior Notes due 2007,
Series A.
"Series B Senior Notes" means the Company's 11% Senior Notes due 2007,
Series B.
11
"Shareholders Agreement" means that certain Shareholders Agreement dated as
of December 27, 1996 among the Company and the stockholders of the Company named
therein.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"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 Registration Rights Agreement" means that certain
Registration Rights Agreement dated as of December 27, 1996 among the Company
and the stockholders of the Company named therein.
"Subordinated Indebtedness" means (a) with respect to the Notes, any
Indebtedness of the Company which is by its terms subordinated in right of
payment to the Notes and (b) with respect to any Subsidiary Guarantee, any
Indebtedness of the applicable Subsidiary Guarantor which by its terms is
subordinated in right of payment to such Subsidiary Guarantee.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantor" means each of (i) AmeriTel, ▇▇▇▇▇▇
Telecommunications, ▇▇▇▇▇▇ of Carolina and ▇▇▇▇▇▇ STC, and (ii) any other
Subsidiary that executes a Subsidiary Guarantee in accordance with the
provisions of Section 4.17, 5.01 or 10.03 hereof, and their respective
successors and assigns.
"▇▇▇▇▇▇ Lease" means that certain lease dated as of December 27, 1996,
between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Telecommunications Corporation.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
77bbbb), as amended, as in effect on the date hereof.
"Transfer Restricted Securities" means Senior Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means U.S. Trust Company of Texas, N.A. until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor.
"Unrestricted Global Notes" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary (other than AmeriTel,
▇▇▇▇▇▇ Telecommunications, ▇▇▇▇▇▇ of Carolina or ▇▇▇▇▇▇ STC or any successor to
any of them) 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: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless
12
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; (c) 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; (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; and (e) 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. 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 4.07 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
Indenture and any Indebtedness and Liens of such Subsidiary shall be deemed to
be incurred by a Restricted Subsidiary of the Company as of such date (and, if
such Indebtedness or any such Lien is not permitted to be incurred as of such
date under Section 4.08 hereof or Section 4.10 hereof, respectively, 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 and Liens by a Restricted Subsidiary of the Company of any
outstanding Indebtedness and Liens of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 4.08 hereof calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, (ii) such Liens
are permitted under Section 4.10 hereof, and (iii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by 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
"Acceleration Notice"................ 6.02
"Affiliate Transaction".............. 4.11
"Asset Sale Offer"................... 4.09
"Asset Sale Offer Triggering Event".. 4.09
"Change of Control Offer"............ 4.15
"Change of Control Payment".......... 4.15
13
"Change of Control Payment Date"..... 4.15
"Covenant Defeasance"................ 8.03
"Event of Default"................... 6.01
"Excess Proceeds".................... 4.09
"Legal Defeasance"................... 8.02
"Offer Amount"....................... 3.09
"Offer Period"....................... 3.09
"Paying Agent"....................... 2.03
"Payment Default".................... 6.01
"Permitted Indebtedness"............. 4.08
"Purchase Date"...................... 3.09
"Registrar".......................... 2.03
"Repurchase Offer"................... 3.09
"Restricted Payments"................ 4.07
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 Senior Notes;
"indenture security holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Senior Notes means the Company, each Subsidiary
Guarantor and any successor obligor upon the Senior Notes.
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 therein.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
14
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE SENIOR NOTES
Section 2.01. Form and Dating.
The Senior Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1 or Exhibit A-2 attached hereto. The
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Senior Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Senior Note shall be dated the date of its
authentication. The Senior Notes initially shall be issued in denominations of
$1,000 and integral multiples thereof.
The terms and provisions contained in the Senior Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Senior Notes offered and sold to QIBs in reliance
on Rule 144A shall, and to Institutional Accredited Investors who are not QIBs
at the request of each such Institutional Accredited Investor may, be issued
initially in the form of 144A Global Notes, which shall be deposited on behalf
of the purchasers of the Senior Notes represented thereby with a custodian of
the Depository, and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the 144A Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as hereinafter
provided.
Senior Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which
shall be deposited on behalf of the purchasers of the Senior Notes represented
thereby with the Trustee, as custodian for the Depository, and registered in the
name of the Depository or the nominee of the Depository for the accounts of
designated agents holding on behalf of Euroclear or Cedel, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The "40-day
restricted period" (as defined in Regulation S) shall be terminated upon the
receipt by the Trustee of (i) a written certificate from the Depository,
together with copies of certificates from Euroclear and Cedel certifying that
they have received certification of non-United States beneficial ownership of
100% of the aggregate principal amount of the Regulation S Temporary Global Note
(except to the extent of any beneficial owners thereof who acquired an interest
therein pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Note, all as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers'
Certificate from the Company. Following the termination of the 40-day
restricted period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Senior Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Senior Notes from time to time endorsed thereon
and that the aggregate amount of outstanding Senior Notes represented thereby
15
may from time to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions and transfers of interests. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Senior Notes represented thereby shall be made by the Trustee or the
Senior Note Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole but not in part, only to another nominee of the Depository
or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
144A Global Notes and Regulation S Permanent Global Notes deposited with or on
behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depository or the nominee of the Depository and
(ii) shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instructions or held by the Trustee as custodian for the
Depository.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depository or by the
Senior Note Custodian as custodian for the Depository or under such Global Note,
and the Depository may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its
Participants, the operation of customary practices of such Depository governing
the exercise of the rights of an owner of a beneficial interest in any Global
Note.
(c) Definitive Senior Notes. Senior Notes issued in certificated form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
-----------
including the text referred to in footnotes 1 and 3 thereto).
Section 2.02. Execution and Authentication.
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Senior Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Senior Notes shall be
substantially as set forth in Exhibit A-1 or Exhibit A-2 hereto.
----------- -----------
16
The Trustee shall, upon a written order of the Company signed by two
Officers directing the Trustee to authenticate the Senior Notes and certifying
that all conditions precedent to the issuance of the Senior Notes contained
herein have been complied with, authenticate Senior Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the Senior Notes.
The Trustee shall, upon written order of the Company signed by two Officers,
authenticate Series B Senior Notes for original issuance in exchange for a like
principal amount of Series A Senior Notes exchanged in the Exchange Offer or
otherwise exchanged for Series A Senior Notes pursuant to the terms of the
Registration Rights Agreement. The aggregate principal amount of Senior Notes
outstanding at any time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may (at the Company's expense) appoint an authenticating
agent acceptable to the Company to authenticate Senior Notes. An authenticating
agent may authenticate Senior Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where Senior Notes may
be presented for registration of transfer or for exchange ("Registrar") and (ii)
an office or agency where Senior Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Senior Notes and of their
transfer and exchange. The Company may appoint one or more additional paying
agents. 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 Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Senior Note Custodian with respect to the Global
Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, interest or Additional Interest, if any, on the Senior Notes,
and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) 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
the occurrence of events specified in Section 6.01(viii) and 6.01(ix) hereof,
the Trustee shall serve as Paying Agent for the Senior Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the
17
Trustee is not the Registrar, the Company and/or the Subsidiary Guarantors shall
furnish to the Trustee at least seven (7) 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 Senior Notes and the Company and the
Subsidiary Guarantors shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) 144A Global Note to Regulation S Global Note. If, at any time,
an owner of a beneficial interest in a 144A Global Note deposited
with the Depository (or the Trustee as custodian for the
Depository) wishes to transfer its beneficial interest in such
144A Global Note to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Regulation S
Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in a Regulation S Global Note
as provided in this Section 2.06(a)(i). Upon receipt by the
Trustee of (1) instructions given in accordance with the
Applicable Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the 144A Global Note to be exchanged, (2) a written
order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the
Depository and the Euroclear or Cedel account to be credited with
such increase, and (3) a certificate in the form of Exhibit B-1
-----------
hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S, then the Trustee, as Registrar, shall instruct the
Depository to reduce or cause to be reduced the aggregate
principal amount at maturity of the applicable 144A Global Note
and to increase or cause to be increased the aggregate principal
amount at maturity of the applicable Regulation S Global Note by
the principal amount at maturity of the beneficial interest in
the 144A Global Note to be exchanged or transferred, to credit or
cause to be credited to the account of the Person specified in
such instructions, a beneficial interest in the Regulation S
Global Note equal to the reduction in the aggregate principal
amount at maturity of the 144A Global Note, and to debit, or
cause to be debited, from the account of the Person making such
exchange or transfer the beneficial interest in the 144A Global
Note that is being exchanged or transferred.
(ii) Regulation S Global Note to 144A Global Note. If, at any time,
after the expiration of the 40-day restricted period, an owner of
a beneficial interest in a Regulation S Global Note deposited
with the Depository or with the Trustee as custodian for the
Depository wishes to transfer its beneficial interest in such
Regulation S Global Note
18
to a Person who is required or permitted to take delivery thereof
in the form of an interest in a 144A Global Note, such owner
shall, subject to the Applicable Procedures, exchange or cause
the exchange of such interest for an equivalent beneficial
interest in a 144A Global Note as provided in this Section
2.06(a)(ii). Upon receipt by the Trustee of (1) instructions from
Euroclear or Cedel, if applicable, and the Depository, directing
the Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be
exchanged, such instructions to contain information regarding the
Participant account with the Depository to be credited with such
increase, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the
participant account of the Depository and (3) a certificate in
the form of Exhibit B-2 attached hereto given by the owner of
-----------
such beneficial interest stating (A) if the transfer is pursuant
to Rule 144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the Person
acquiring such interest in a 144A Global Note is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B) that the
transfer complies with the requirements of Rule 144 under the
Securities Act, (C) if the transfer is to an Institutional
Accredited Investor that such transfer is in compliance with the
Securities Act and a certificate in the form of Exhibit C
attached hereto and, if such transfer is in respect of an
aggregate principal amount of less than $100,000, an Opinion of
Counsel acceptable to the Company that such transfer is in
compliance with the Securities Act or (D) if the transfer is
pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and
in accordance with the requirements of the exemption claimed,
such statement to be supported by an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to the
Company and to the Registrar and in each case, in accordance with
any applicable securities laws of any state of the United States
or any other applicable jurisdiction, then the Trustee, as
Registrar, shall instruct the Depository to reduce or cause to be
reduced the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be increased
the aggregate principal amount at maturity of the applicable 144A
Global Note by the principal amount at maturity of the beneficial
interest in the Regulation S Global Note to be exchanged or
transferred, and the Trustee, as Registrar, shall instruct the
Depository, concurrently with such reduction, to credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the applicable 144A Global
Note equal to the reduction in the aggregate principal amount at
maturity of such Regulation S Global Note and to debit or cause
to be debited from the account of the Person making such transfer
the beneficial interest in the Regulation S Global Note that is
being exchanged or transferred.
(b) Transfer and Exchange of Definitive Senior Notes. When Definitive
Senior Notes are presented by a Holder to the Registrar with a request to
register the transfer of the Definitive Senior Notes or to exchange such
Definitive Senior Notes for an equal principal amount of Definitive Senior Notes
of other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested only if the Definitive Senior Notes are presented
or surrendered for registration of transfer or exchange, are endorsed and
contain a signature guarantee or accompanied by a written instrument of transfer
in form satisfactory to the Registrar duly executed by such Holder or by his
attorney and contains a signature guarantee, duly
19
authorized in writing and the Registrar received the following documentation
(all of which may be submitted by facsimile):
(i) in the case of Definitive Senior Notes that are Transfer
Restricted Securities, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Transfer Restricted
Security is being transferred to the Company or any of its
Subsidiaries, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto);
-----------
or
(B) if such Transfer Restricted Security is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto);
-----------
or
(C) if such Transfer Restricted Security is being transferred
to a Non-U.S. Person in an offshore transaction in
accordance with Rule 904 under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto); or
-----------
(D) if such Transfer Restricted Security is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
or (C) above, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto), a
-----------
certification substantially in the form of Exhibit C
---------
hereto, and, if such transfer is in respect of an aggregate
principal amount of Senior Notes of less than $100,000, an
Opinion of Counsel acceptable to the Company that such
transfer is in compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being transferred
in reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of
Exhibit B-3 hereto) and an Opinion of Counsel from such
-----------
Holder or the transferee reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(c) Transfer of a Beneficial Interest in a 144A Global Note or Regulation
S Permanent Global Note for a Definitive Senior Note.
(i) Any Person having a beneficial interest in a 144A Global Note or
Regulation S Permanent Global Note may upon request, subject to
the Applicable Procedures, exchange such beneficial interest for
a Definitive Senior Note. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary
for the Depository (or Euroclear or Cedel, if applicable), from
the Depository or its nominee on behalf of any Person having a
beneficial interest in a 144A Global Note
20
or Regulation S Permanent Global Note, and, in the case of a
Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial
owner, a certification to that effect from such Person (in
substantially the form of Exhibit B-4 hereto);
-----------
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act,
a certification to that effect from the transferor (in
substantially the form of Exhibit B-4 hereto);
-----------
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements of
the Securities Act (and based on an Opinion of Counsel if
the Company so requests), a certification to that effect
from such Holder (in substantially the form of Exhibit B-4
-----------
hereto) and a certification from the applicable transferee
(in substantially the form of Exhibit C hereto); or
---------
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit B-4 hereto) and an Opinion of Counsel from the
-----------
transferee or the transferor reasonably acceptable to the
Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act, in which
case the Trustee or the Senior Note Custodian, at the
direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the
Depository and the Senior Note Custodian, cause the
aggregate principal amount of 144A Global Notes or
Regulation S Permanent Global Notes, as applicable, to be
reduced accordingly and, following such reduction, the
Company shall execute and, the Trustee shall authenticate
and deliver to the transferee a Definitive Senior Note in
the appropriate principal amount.
(ii) Definitive Senior Notes issued in exchange for a beneficial
interest in a 144A Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or
Indirect Participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Definitive Senior Notes to the
Persons in whose names such Senior Notes are so registered.
Following any such issuance of Definitive Senior Notes, the
Trustee, as Registrar, shall instruct the Depository to reduce or
cause to be reduced the aggregate principal amount at maturity of
the applicable Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding
any other provision of this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.06), a Global Note may not be transferred as a
whole except by the Depository to a nominee of the
21
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) Authentication of Definitive Senior Notes in Absence of Depository.
If at any time:
(i) the Depository for the Senior Notes notifies the Company
that the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository
for the Global Notes is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of
Definitive Senior Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Senior Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(f) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Senior Note certificate evidencing Global Notes and
Definitive Senior Notes (and all Senior Notes issued in exchange
therefor or substitution thereof) shall bear the legend (the
"Private Placement Legend") in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. 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 THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE
THE UNITED STATES 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, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF THE
SECURITIES ACT), THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SENIOR NOTES LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE
22
COMPANY 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."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Senior Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Senior Note that does not bear
the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security upon receipt of a certification from the
transferring holder substantially in the form of Exhibit B-
---------
4 hereto; and
-
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof; provided, however, that
with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note
for a Definitive Senior Note that does not bear the legend
set forth in (i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing
to the Registrar that such request is being made pursuant
to Rule 144 (such certification to be substantially in the
form of Exhibit B-4 hereto).
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(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions
pursuant to Rule 144A or Rule 144 under the Securities Act) in
which the Holder or the transferee provides an Opinion of
Counsel to the Company and the Registrar in form and substance
reasonably acceptable to the Company and the Registrar (which
Opinion of Counsel shall also state that the transfer
restrictions contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security that is a
Definitive Senior Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Senior Note that does not bear
the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of
Section 2.06(a) and (b) hereof.
23
(iv) Notwithstanding the foregoing, 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 hereof, the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in aggregate principal amount equal to the principal amount
of the Restricted Beneficial Interests tendered for acceptance by
Persons that are not (x) broker-dealers, (y) Persons
participating in the distribution of the Series B Senior Notes or
(z) Persons who are affiliates (as defined in Rule 144) of the
Company and accepted for exchange in the Exchange Offer and (ii)
Definitive Senior Notes that do not bear the Private Placement
Legend in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Senior Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance
of such Senior Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to be
reduced accordingly and the Company shall execute and the Trustee
shall authenticate and deliver to the Persons designated by the
Holders of Definitive Senior Notes so accepted Definitive Senior
Notes in the appropriate principal amount.
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Definitive
Senior Notes, redeemed, repurchased or cancelled, all Global Notes shall be
returned to or retained and cancelled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Definitive Senior Notes, redeemed, repurchased
or cancelled, the principal amount of Senior Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note, by the Trustee or the Senior Notes Custodian, at the direction of
the Trustee, to reflect such reduction.
(h) 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 Notes and Definitive Senior Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange
or transfer pursuant to Sections 2.10, 3.06, 4.09, 4.15 and
9.05 hereto).
(iii) All Global Notes and Definitive Senior Notes issued upon
any registration of transfer or exchange of Global Notes or
Definitive Senior Notes shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Global Notes or
Definitive Senior Notes surrendered upon such registration
of transfer or exchange.
(iv) The Registrar shall not be required: (A) to issue, to
register the transfer of or to exchange Senior Notes during
a period beginning at the opening of fifteen (15) Business
Days before the day of any selection of Senior Notes 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
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exchange any Senior Note so selected for redemption in
whole or in part, except the unredeemed portion of any
Senior Note being redeemed in part, or (C) to register the
transfer of or to exchange a Senior Note between a record
date and the next succeeding interest payment date.
(v) Prior to due presentment for the registration of a transfer
of any Senior Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Senior Note
is registered as the absolute owner of such Senior Note for
the purpose of receiving payment of principal of and
interest on such Senior Notes and for all other purposes,
and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive
Senior Notes in accordance with the provisions of Section
2.02 hereof.
Section 2.07. Replacement Senior Notes.
If any mutilated Senior Note is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Senior Note, the Company shall issue and the Trustee, upon the
written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Senior Note if the Trustee's requirements are met.
If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee and any Agent from any loss that any of them
may suffer if a Senior Note is replaced. The Company and the Trustee may charge
for their expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Senior Notes duly issued hereunder.
Section 2.08. Outstanding Senior Notes.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Senior Note does not cease to be outstanding because the
Company or any Subsidiary Guarantor or an Affiliate of the Company or any
Subsidiary Guarantor holds the Senior Note.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Senior Notes payable on that date, then on and after that date such
Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
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Section 2.09. Treasury Senior Notes.
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by the Company or any Subsidiary Guarantor, or by any Affiliate of the
Company or any Subsidiary Guarantor 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
Senior Notes as to which a Responsible Officer of the Trustee has received
written notice are so owned shall be so considered. Notwithstanding the
foregoing, Senior Notes that are to be acquired by the Company or any Subsidiary
Guarantor or an Affiliate of the Company or any Subsidiary Guarantor pursuant to
an exchange offer, tender offer or other agreement shall not be deemed to be
owned by such entity until legal title to such Senior Notes passes to such
entity.
Section 2.10. Temporary Senior Notes.
Until Definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes upon a written
order of the Company signed by two Officers of the Company. Temporary Senior
Notes shall be substantially in the form of Definitive Senior Notes but may have
variations that the Company considers appropriate for temporary Senior Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall upon
receipt of a written order of the Company signed by two Officers authenticate
Definitive Senior Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver to the Trustee for cancellation any
Senior Notes previously authenticated and delivered hereunder or which the
Company may have acquired in any manner whatsoever, and all Senior Notes so
delivered shall be promptly cancelled by the Trustee. All Senior Notes
surrendered for registration of transfer, exchange or payment, if surrendered to
any Person other than the Trustee, shall be delivered to the Trustee. The
Trustee and no one else shall cancel all Senior Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation.
Subject to Section 2.07 hereof, the Company may not issue new Senior Notes to
replace Senior Notes that it has redeemed or paid or that have been delivered to
the Trustee for cancellation. All cancelled Senior Notes held by the Trustee
shall be disposed of as directed by a written order signed by two Officers of
the Company, or in accordance with the Trustee's usual practice.
Section 2.12. Defaulted Interest.
If the Company or any Subsidiary Guarantor defaults in a payment of
interest on the Senior Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Holders on a subsequent special record date, which date
shall be at the earliest practicable date but in all events at least five (5)
Business Days prior to the payment date, in each case at the rate provided in
the Senior Notes and in Section 4.01 hereof. The Company shall fix or cause to
be fixed each such special record date and payment date, and shall promptly
thereafter, notify the Trustee of any such date. At least fifteen (15) days
before the special record date, the Company (or 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.
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Section 2.13. Record Date.
The record date for purposes of determining the identity of Holders of the
Senior Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA (S) 316 (c).
Section 2.14. Computation of Interest.
Interest on the Senior Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Section 2.15. CUSIP Number.
The Company in issuing the Senior Notes may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Senior Notes and that reliance may be
placed only on the other identification numbers printed on the Senior Notes.
The Company shall promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Senior Notes 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 (unless a
shorter period is acceptable to the Trustee) an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Senior Notes to
be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Senior Notes
pursuant to Section 4.09 or 4.15 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before the scheduled purchase date
(unless a shorter period is acceptable to the Trustee), an Officers' Certificate
setting forth (i) the section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the terms of the offer, (iii) the principal amount of
Senior Notes to be purchased, (iv) the purchase price, (v) the purchase date and
(vi) and further setting forth a statement to the effect that (a) the Company or
one its Subsidiaries has affected an Asset Sale and there are Excess Proceeds
aggregating more than $10.0 million or (b) a Change of Control has occurred, as
applicable.
Section 3.02. Selection of Senior Notes to be Redeemed or Purchased.
If less than all of the Senior Notes are to be redeemed at any time,
selection of the Senior Notes for redemption shall be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Senior Notes are listed, or, if the Senior Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee deems
fair and appropriate; provided that no Senior Notes with a principal amount of
$1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company in writing of the Senior
Notes selected for redemption and, in the case of any Senior Note selected for
partial purchase or redemption, the principal amount thereof
27
to be redeemed. Senior Notes and portions of Senior Notes selected shall be in
amounts of $1,000 or integral multiples of $1,000; except that if all of the
Senior Notes of a Holder are to be purchased or redeemed, the entire outstanding
amount of Senior Notes held by such Holder, even if not a multiple of $1,000,
shall be redeemed. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Senior Notes called for redemption also apply to
portions of Senior Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Senior Notes are to be redeemed.
The notice shall identify the Senior Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Senior Notes and accrued interest,
and Additional Interest, if any;
(3) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Notes to be redeemed and that,
after the redemption date, upon surrender of such Senior Note, a
new Senior Note or Senior Notes in principal amount equal to the
unredeemed portion shall be issued upon surrender of the original
Senior Note;
(4) the name and address of the Paying Agent;
(5) that Senior Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest and Additional Interest, if any, on Senior
Notes called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Senior Notes and/or Section of this
Indenture pursuant to which the Senior Notes called for
redemption are being redeemed; and
(8) 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 Senior Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Senior Note shall not affect the validity of the
proceeding for the redemption of any other Senior Note.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Senior Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued
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and unpaid interest and Additional Interest, if any, to such date. A notice of
redemption may not be conditional.
Section 3.05. Deposit of Redemption or Purchase Price.
On or before 10:00 a.m. (New York City time) on each redemption date or the
date on which Senior Notes must be accepted for purchase pursuant to Section
4.09 or 4.15, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued and unpaid
interest and Additional Interest, if any, on all Senior Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall promptly return
to the Company upon its written request any money deposited with the Trustee or
the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of (including any applicable premium), accrued interest and
Additional Interest, if any, on all Senior Notes to be redeemed or purchased.
If Senior Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if the Company has deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase price
of, unpaid and accrued interest and Additional Interest, if any, on all Senior
Notes to be redeemed or purchased, on and after the redemption or purchase date
interest and Additional Interest, if any, shall cease to accrue on the Senior
Notes or the portions of Senior Notes called for redemption or tendered and not
withdrawn in an Asset Sale Offer or Change of Control Offer (regardless of
whether certificates for such securities are actually surrendered). If a Senior
Note is redeemed or purchased on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
and Additional Interest, if any, shall be paid to the Person in whose name such
Senior Note was registered at the close of business on such record date. If any
Senior Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal and Additional
Interest, if any, from the redemption or purchase date until such principal and
Additional Interest, if any, 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
Senior Notes and in Section 4.01 hereof.
Section 3.06. Senior Notes Redeemed in Part.
Upon surrender of a Senior Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Senior Note equal in
principal amount to the unredeemed portion of the Senior Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in the next paragraph, Senior Notes shall not be
redeemable at the Company's option prior to June 30, 2002. Thereafter, the
Senior Notes shall be subject to redemption at any time at the option of the
Company, in whole or in part, at the redemption prices (expressed as percentages
of principal amount) set forth below, plus any accrued and unpaid interest and
Additional Interest, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 30 of the years
indicated below:
Year Percentage
---- ----------
2002................................................ 105.500%
2003................................................ 103.667%
2004................................................ 101.833%
2005 and thereafter................................. 100.000%
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(b) Notwithstanding the foregoing, at any time prior to June 30, 2000, the
Company may on any one or more occasions redeem up to 30% of the original
aggregate principal amount of Senior Notes at a redemption price of 111.0% of
the principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to the redemption date, with the net proceeds of an Equity
Offering of the Company; provided that at least $80.0 million aggregate
principal amount of Senior Notes originally issued remain outstanding
immediately after the occurrence of any such redemption; and provided, further,
that such redemption shall occur within 90 days of the date of the closing of
any such Equity Offering.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 3.09, 4.09 and 4.15 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Senior Notes.
Section 3.09. Repurchase Offers.
In the event that the Company shall be required to commence an offer to all
Holders to repurchase Senior Notes (a "Repurchase Offer") pursuant to Section
4.09 hereof, an "Asset Sale Offer," or pursuant to Section 4.15 hereof, a
"Change of Control Offer," the Company shall follow the procedures specified
below.
A Repurchase Offer shall commence no later than thirty (30) days after a
Change of Control (unless the Company is not required to make such offer
pursuant to Section 4.15 hereof) or an Asset Sale Offer Triggering Event (as
defined below), as the case may be, and remain open for a period of twenty (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 (5) Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Senior
Notes required to be purchased pursuant to Section 4.09 hereof, in the case of
an Asset Sale Offer, or 4.15 hereof, in the case of a Change of Control Offer
(the "Offer Amount") or, if less than the Offer Amount has been tendered, all
Senior Notes tendered in response to the Repurchase Offer. Payment for any
Senior Notes 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 and
Additional Interest, if any, shall be paid to the Person in whose name a Senior
Note is registered at the close of business on such record date, and no
additional interest or Additional Interest, if any, shall be payable to Holders
who tender Senior Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase 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 Senior Notes pursuant to such
Repurchase Offer. The Repurchase Offer shall be made to all Holders. The
notice, which shall govern the terms of the Repurchase Offer, shall describe the
transaction or transactions that constitute the Change of Control or Asset Sale
Offer Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section 3.09
and Section 4.09 or 4.15 hereof, as the case may be, and the length of
time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Note not tendered or accepted for payment shall
continue to accrue interest;
30
(d) that, unless the Company defaults in making such payment, any Senior
Note accepted for payment pursuant to the Repurchase Offer shall cease
to accrue interest and Additional Interest, if any, after the Purchase
Date;
(e) that Holders electing to have a Senior Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Senior Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Senior Note, duly completed, or transfer by book-entry
transfer, to the Company, the Depository, or the Paying Agent at the
address specified in the notice not later than the close of business
on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if the
Company, the Depository 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 Senior Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Senior Note purchased;
(g) that, if the aggregate principal amount of Senior Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Senior
Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Senior Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Senior Notes were purchased only in part shall be
issued new Senior Notes equal in principal amount to the unpurchased
portion of the Senior Notes surrendered (or transferred by book-entry
transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Senior Notes equal to the Offer Amount, together with
accrued and unpaid interest and Additional Interest, if any, thereon, to be held
for payment in accordance with the terms of this Section 3.09. On the Purchase
Date, the Company shall, to the extent lawful, (i) accept for payment, on a pro
rata basis to the extent necessary, the Offer Amount of Senior Notes or portions
thereof tendered pursuant to the Repurchase Offer, or if less than the Offer
Amount has been tendered, all Senior Notes tendered, (ii) deliver or cause the
Paying Agent or Depository, as the case may be, to deliver to the Trustee Senior
Notes so accepted and (iii) deliver to the Trustee an Officers' Certificate
stating that such Senior Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09. The Company, the
Depository or the Paying Agent, as the case may be, shall promptly (but in any
case not later than three (3) Business Days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Senior Notes tendered by such Holder and accepted by the Company for purchase,
plus any accrued and unpaid interest and Additional Interest, if any, thereon,
and the Company shall promptly issue a new Senior Note, and the Trustee, shall
authenticate and mail or deliver such new Senior Note, to such Holder, equal in
principal amount to any unpurchased portion of such Holder's Senior Notes
surrendered. Any Senior Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Repurchase
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, 3.02, 3.05 and 3.06 hereof.
31
ARTICLE 4
COVENANTS
Section 4.01. Payment of Senior Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Senior Notes on the dates and in the manner provided in
the Senior Notes. The Company shall pay all Additional Interest, if any, in the
same manner on the dates and in the amounts set forth in the Registration Rights
Agreement. Principal, premium, if any, and interest, and Additional Interest,
if any, shall be considered paid for all purposes hereunder on the date the
Paying Agent if other than the Company or a Subsidiary thereof holds, as of
10:00 a.m. (New York City time) money deposited by the Company in immediately
available funds and designated for and sufficient to pay all such principal,
premium, if any, and interest and Additional Interest, if any, then due.
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 Senior Notes
to the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
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 or Registrar) where Senior Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Senior Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Senior Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby designates the New York office of United States Trust
Company of New York, an affiliate of the Trustee, as one such office or agency
of the Company in accordance with Section 2.03 hereof.
Section 4.03. SEC Reports.
From and after the earlier of the effective date of the Exchange Offer
Registration Statement or the effective date of the Shelf Registration
Statement, whether or not required by the rules and regulations of the
Commission, so long as any Senior Notes are outstanding, the Company shall
furnish to the Holders of Senior Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission 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" and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
32
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, the Company shall
file a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) within the
time periods that would have been applicable had the Company been subject to
such rules and regulations and make such information available to securities
analysts and prospective investors upon request. In addition, the Company has
agreed that, for so long as any Senior Notes remain outstanding, it shall
furnish to the Holders, to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act. The Company shall at all times comply with
TIA (S) 314(a).
The financial information to be distributed to Holders of Senior Notes
shall be filed with the Trustee and mailed to the Holders at their addresses
appearing in the register of Senior Notes maintained by the Registrar, within 90
days after the end of the Company's fiscal years and within 45 days after the
end of each of the first three quarters of each such fiscal year.
The Company shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information and, if requested by the
Company, the Trustee will deliver, at the Company's expense, such reports to the
Holders under this Section 4.03.
Section 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 100 days after the end of
each fiscal year and within 50 days after the end of each of the first three
fiscal quarters in each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year or fiscal quarter, as applicable, has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture
(including, with respect to any Restricted Payments made during such period, the
basis upon which the calculations required by Section 4.07 hereof were computed,
which calculations may be based on the Company's latest available financial
statements), and further stating, as to each such Officer signing such
certificate, that, to the best of his or her knowledge, each entity 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 or Additional Interest, if
any, on the Senior Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, in connection with the year-end
financial statements delivered pursuant to Section 4.03 hereof, the Company
shall use its best efforts to deliver a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of Article Four or Section 5.01 hereof or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation. In the event that such written statement of the Company's
independent public accountants cannot be obtained, the Company shall deliver an
Officers' Certificate certifying that it has used its best efforts to obtain
such statements and was unable to do so.
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The Company shall, so long as any of the Senior Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
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 and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
Section 4.06. Stay, Extension and Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Subsidiary Guarantor (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. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company) 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); (ii) 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; (iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Subordinated Indebtedness, except a payment of interest
or principal at Stated Maturity; or (iv) make any Restricted Investment (all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time of
and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 4.08
hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries on or
after the date hereof (excluding Restricted Payments permitted by clauses
(ii), (iii), (iv) and (v) (but only to the extent of the dividends paid to
the Company or its Wholly Owned Restricted Subsidiaries pursuant to such
clause (v)) of the next succeeding paragraph), is less than the sum of (i)
50% of the Consolidated Net Income of the Company for the
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period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the date hereof 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 (ii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale since the date hereof of Equity Interests of
the Company (other than Disqualified Stock) or 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 debt securities that have been converted into
Disqualified Stock), plus (iii) to the extent that any Restricted
Investment that was made after the date hereof 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.
The foregoing provisions shall not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions hereof; (ii) so
long as no Default or Event of Default shall have occurred and be continuing,
the redemption, repurchase, defeasance, retirement or other acquisition of any
Subordinated Indebtedness or Equity Interests of the Company in exchange for, or
out of the net cash proceeds of, the substantially concurrent sale (other than
to a Subsidiary of the Company) of other Equity Interests of the Company (other
than any Disqualified Stock); provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, defeasance,
retirement or other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph; (iii) so long as no Default or Event of Default shall have
occurred and be continuing, the redemption, repurchase, defeasance, retirement
or other acquisition of any Subordinated Indebtedness with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no
Default or Event of Default shall have occurred and be continuing, the
retirement of any shares of Disqualified Stock by conversion into, or by
exchange for, shares of Disqualified Stock, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Disqualified Stock; provided that (a) such Disqualified Stock is
not subject to mandatory redemption earlier than the maturity of the Notes, (b)
such Disqualified Stock is in an aggregate liquidation preference that is equal
to or less than the sum of (x) the aggregate liquidation preference of the
Disqualified Stock being retired, (y) the amount of accrued and unpaid
dividends, if any, and premiums owed, if any, on the Disqualified Stock being
retired and (z) the amount of customary fees, expenses and costs related to the
incurrence of such Disqualified Stock and (c) such Disqualified Stock is
incurred by the same Person that initially incurred the Disqualified Stock being
retired, except that the Company may incur Disqualified Stock to refund or
refinance Disqualified Stock of any Wholly Owned Subsidiary of the Company; (v)
the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its Equity Interests on a pro rata basis; (vi) the payment of cash
dividends on the Existing Preferred Stock when such dividends are required to be
paid in accordance with the Certificate of Designation with respect to the
Existing Preferred Stock; (vii) so long as no Default or Event of Default shall
have occurred and be continuing, 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 date
hereof; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $300,000 in any
twelve-month period; (viii) so long as no Default or Event of Default shall have
occurred and be continuing, repurchases of Equity Interests deemed to occur upon
the exercise of stock options or warrants upon surrender of Equity Interests to
pay the exercise price of such stock options or warrants; and (ix) so long as no
Default or Event of Default shall have occurred and be continuing, other
Restricted Payments in an aggregate amount not to exceed $1.0 million since the
date hereof.
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 business currently operated
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by AmeriTel, ▇▇▇▇▇▇ Telecommunications, ▇▇▇▇▇▇ of Carolina or ▇▇▇▇▇▇ STC be
transferred to or held by any Subsidiary other than a Wholly Owned Restricted
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 will be deemed to be Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under the first paragraph of this covenant. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the greatest of (x) the net book value of such Investments at the time
of such designation, (y) the fair market value of such Investments at the time
of such designation and (z) the original fair market value of such Investments
at the time they were made. Such designation will 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 amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined by the Board of Directors of the
Company, whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $5.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed, and that no Default or Event of Default will result from making the
Restricted Payment, together with a copy of any fairness opinion or appraisal
required by this Indenture.
Section 4.08. Limitation on Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its 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 Indebtedness) and
that the Company shall not issue any Disqualified Stock and shall not permit any
of its Subsidiaries to issue any shares of preferred stock; provided, however,
that the Company may incur Indebtedness (including Acquired Indebtedness) or
issue shares of Disqualified Stock if (A) the Fixed Charge Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least (x) 1.75 to 1.0 if the Indebtedness is incurred prior to
December 31, 1998, (y) 2.0 to 1.0 if the Indebtedness is incurred prior to
December 31, 1999 or (z) 2.5 to 1.0 if the Indebtedness is incurred on or after
December 31, 1999, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Disqualified Stock had been issued, as the case may
be, at the beginning of such four-quarter period, and (B) no Default or Event of
Default shall have occurred and be continuing at the time or as a consequence of
the incurrence of such Indebtedness or the issuance of such Disqualified Stock.
The provisions of the first paragraph of this covenant shall not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Indebtedness"):
(i) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness under the Senior Credit Facilities and the issuance and
creation of letters of credit and banker's acceptances thereunder
(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) not to exceed an amount equal to $80.0
million outstanding at any one time, less the aggregate amount of all
Net Proceeds of Asset Sales applied to permanently reduce the
commitments with respect to such Indebtedness pursuant to Section 4.09
below;
36
(ii) the incurrence by the Company and its Subsidiaries of the Existing
Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the
Senior Notes and the incurrence by the Subsidiary Guarantors of the
Subsidiary Guarantees, respectively;
(iv) 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 refund, refinance or replace any
Indebtedness that was permitted by this Indenture to be incurred;
(v) the incurrence by the Company or any of its Wholly Owned Restricted
Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Wholly Owned Restricted Subsidiaries;
provided, however, that (i) if the Company or a Subsidiary Guarantor
is the obligor on such Indebtedness, such Indebtedness is unsecured
and expressly subordinated to the prior payment in full in cash of
all Obligations with respect to the Senior Notes and the Subsidiary
Guarantees, respectively, 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 Wholly Owned
Restricted Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Wholly
Owned 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, that was not permitted by
this clause (v);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations in the ordinary course of business of the
Company or any of its Restricted Subsidiaries; provided that the
notional principal amount of such Hedging Obligation does not exceed
the principal amount of Indebtedness to which such Hedging
Obligation relates;
(vii) the guarantee by the Company or any of the Subsidiary Guarantors of
Indebtedness of the Company or any of its Restricted Subsidiaries
that was permitted to be incurred by another provision of this
covenant;
(viii) the incurrence by the Company's Unrestricted Subsidiaries of Non-
Recourse Debt, provided, however, that if any such Indebtedness
ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such
event shall be deemed to constitute an incurrence of Indebtedness
(and Liens, if any, securing such Indebtedness) by a Restricted
Subsidiary of the Company; or
(ix) the incurrence by the Company or any of its Restricted Subsidiaries
of additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including
all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any other Indebtedness incurred pursuant to this clause
(ix), not to exceed $5.0 million.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (i) through (ix) above
or is entitled to be incurred pursuant to the first paragraph of this Section
4.08, the Company shall, in its sole discretion, classify such item of
Indebtedness in any manner that complies with this Section 4.08 and such item of
Indebtedness will be treated as having been incurred pursuant to only one of
such clauses or pursuant to the first paragraph hereof. Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness will not be deemed to be an incurrence of Indebtedness
for purposes of this Section 4.08.
37
Section 4.09. Limitation on Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) 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 of the Company set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided that the amount of (x) 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
liabilities and liabilities that are by their terms subordinated to the Senior
Notes or any Subsidiary 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 (y) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received), shall be deemed to be cash for purposes of this clause (ii).
Within 270 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or any Restricted Subsidiary may apply such Net Proceeds, at its
option, (a) to repay Indebtedness outstanding under the Senior Credit Facilities
(and to correspondingly reduce commitments with respect thereto), or (b) to the
acquisition of a controlling interest in another business, the making of a
capital expenditure or the acquisition of other long term assets, in each case,
in the same or a similar line of business as the Company was engaged in on the
date hereof. Pending the final application of any such Net Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce outstanding
revolving credit borrowings, including borrowings under the Senior Credit
Facilities, 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 will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $10.0 million (the "Asset Sale Offer Triggering Event"), the
Company will be required to make an offer to all Holders of Senior Notes (an
"Asset Sale Offer") to purchase the maximum principal amount of Senior Notes
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 thereof plus accrued and unpaid
interest and Additional Interest thereon, if any, to the date of purchase, in
accordance with the procedures set forth in Section 3.09 hereof. The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Senior Notes
in any Asset Sales Offer. To the extent that the aggregate amount of Senior
Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Company may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Senior Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Senior Notes 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.
Section 4.10. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or assets of the Company or any such Restricted Subsidiary or any shares of
stock or debt of any such Restricted Subsidiary unless (i) if such Lien secures
Indebtedness which is pari passu with the Senior Notes, then the Senior Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligation is no longer secured by a Lien or (ii) if such Lien
secures Subordinated Indebtedness, any such Lien will be subordinated to a Lien
granted to the holders of the Senior Notes in the same collateral as that
securing such Lien to the same extent as such Subordinated Indebtedness is
subordinated to the Senior Notes.
38
Section 4.11. Limitation on 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
(i) 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 (ii) 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 $500,000, a
resolution of the Board of Directors of the Company 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 of the Company and (b) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 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; provided that the following shall not be deemed Affiliate
Transactions: (1) transactions pursuant to the Senior Credit Facilities; (2)
customary investment banking or financial advisory services rendered by CIBC
Wood Gundy Securities Corp. or Onyx Partners, Inc. or any of their respective
affiliates; (3) transactions under the ▇▇▇▇▇▇ Lease (as such agreement may be
amended or replaced, so long as any amounts paid under such amended or
replacement agreement do not exceed the amounts payable under such agreement as
in effect on the Issuance Date); (4) payments made by the Company or any of its
Restricted Subsidiaries pursuant to the terms of the Consulting and Strategic
Services Agreement (as such agreement may be amended or replaced, so long as any
amounts paid under such amended or replacement agreement do not exceed the
amounts payable under such agreement as in effect on the Issuance Date); (5)
transactions pursuant to the Shareholders Agreement and the Registration Rights
Agreement, each as in effect on the Issuance Date; (6) any employment agreement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and consistent with the past practice of the Company
or such Restricted Subsidiary, (7) transactions between or among the Company
and/or its Restricted Subsidiaries, and (8) Restricted Payments and Permitted
Investments that are permitted by the provisions of Section 4.07.
Section 4.12. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company and any Restricted Subsidiary may enter into a sale and leaseback
transaction if: (i) the Company or such Restricted Subsidiary could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt relating to
such sale and leaseback transaction pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 4.08 hereof and (b) incurred a
Lien to secure such Indebtedness pursuant to Section 4.10 hereof; (ii) the gross
cash proceeds of such sale and leaseback transaction are at least equal to the
fair market value (as determined in good faith by the Board of Directors of the
Company and set forth in an Officers' Certificate delivered to the Trustee) of
the property that is the subject of such sale and leaseback transaction; and
(iii) the transfer of assets in such sale and leaseback transaction is permitted
by, and the Company or such Restricted Subsidiary applies the proceeds of such
transaction in compliance with, Section 4.09 hereof.
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Section 4.13. Limitation on Dividends 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 (i) 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,
(ii) pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries, (iii) make loans or advances to the Company or any of its
Restricted Subsidiaries (iv) guarantee any Indebtedness of the Company or any
other Restricted Subsidiary of the Company or (v) transfer any of its properties
or assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date hereof, (b) the Senior Credit Facility and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive with respect to such
dividend and other payment restrictions than those contained in the Existing
Credit Facility, (c) any acquisition facility under the Senior Credit Facilities
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided that any
such encumbrances or restrictions in such acquisition facility or any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof are no more restrictive with
respect to such dividend and other payment restrictions than those contained in
the Existing Credit Facility, (d) this Indenture, the Senior Notes and the
Subsidiary Guarantees, (e) applicable law, (f) 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 hereof to be
incurred, (g) customary non-assignment provisions in leases and other agreements
entered into in the ordinary course of business and consistent with past
practices, (h) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(v) above on the property so acquired, or (i) Permitted Refinancing
Indebtedness; provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive than
those contained in the agreements governing the Indebtedness being refinanced.
Section 4.14. Limitation on Capital Stock of Restricted Subsidiaries.
The Company (i) shall not, and shall not permit any Restricted Subsidiary
of the Company to, transfer, convey, sell, lease, pledge, hypothecate or
otherwise dispose of any Capital Stock of any Restricted Subsidiary of the
Company to any Person (other than the Company or a Wholly Owned Restricted
Subsidiary of the Company), other than Capital Stock of a Restricted Subsidiary
of the Company which holds property or assets acquired by the Company and its
Restricted Subsidiaries after the date hereof, and (ii) will not permit any
Restricted Subsidiary of the Company to issue any of its Equity Interests to any
Person other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company. The foregoing restrictions shall not apply to (x) an Asset Sale made in
compliance with Section 4.09 hereof or (y) a pledge or hypothecation or other
Lien on Capital Stock of a Restricted Subsidiary otherwise permitted by Section
4.10 hereof.
Section 4.15. Offer to Purchase Upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Senior Notes
will 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 Senior Notes
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
40
Additional Interest, if any, thereon 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 Senior Notes 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 Section 3.09
hereof and described in such notice. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Senior Notes as a result of
a Change of Control.
The Change of Control Offer shall remain open from the time of mailing
until the Business Day preceding the Change of Control Payment Date.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (1) accept for payment all Senior Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Senior
Notes or portions thereof so tendered and (3) deliver or cause to be delivered
to the Trustee the Senior Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Senior Notes or portions
thereof being purchased by the Company. The Paying Agent will promptly mail to
each Holder of Senior Notes so tendered the Change of Control Payment for such
Senior Notes, and the Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered, if
any; provided that each such new Senior Note will be in a principal amount of
$1,000 or an integral multiple thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
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
herein applicable to a Change of Control Offer made by the Company and purchases
all Senior Notes validly tendered and not withdrawn under such Change of Control
Offer.
Section 4.16. Corporate Existence.
Subject to Section 4.15 and Article 5 hereof, as the case may be, the
Company and each Subsidiary Guarantor shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each of its Subsidiaries in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders
of the Senior Notes.
Section 4.17. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries shall after the date
hereof, acquire or create another Restricted Subsidiary or designate an
Unrestricted Subsidiary to be a Restricted Subsidiary then the Company shall
cause such newly acquired or created or designated Restricted Subsidiary to (A)
execute and deliver to the Trustee a supplemental indenture in form and
substance substantially similar to Exhibit E hereto pursuant to which such
---------
Restricted Subsidiary shall unconditionally Guarantee all of the Company's
obligations
41
under the Senior Notes on the terms set forth in such supplemental indenture and
(B) deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee that such supplemental indenture has been duly executed and delivered by
such Restricted Subsidiary.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
The Company shall 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 Person unless (i) the Company is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, 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; (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Senior Notes and this Indenture pursuant to a supplemental indenture
in a form substantially similar to Exhibit E hereto; (iii) immediately after
---------
such transaction no Default or Event of Default exists; (iv) except in the case
of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of
the Company, the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made will, at the time of such transaction and 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 Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 4.08 hereof; and (v) each Subsidiary Guarantor,
unless it is the other party to the transactions described above, shall have by
supplemental indenture in a form substantially similar to Exhibit E hereto
---------
confirmed that its Subsidiary Guarantee shall apply to the Company's or the
surviving Person's obligations under this Indenture and the Senior Notes.
In connection with any consolidation, merger or transfer of assets
contemplated by this Section 5.01, the Company will deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
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 shall 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, that, (i)
solely for the purposes of computing Consolidated Net Income for purposes of
clause (b) of the first paragraph of Section 4.07 hereof, the Consolidated Net
Income of any person other than the Company and its Subsidiaries shall be
included only for periods subsequent to the effective time of such merger,
consolidation,
42
combination or transfer of assets; and (ii) in the case of any sale, assignment,
transfer, lease, conveyance, or other disposition of less than all of the assets
of the predecessor Company, the predecessor Company shall not be released or
discharged from the obligation to pay the principal of or interest and
Additional Interest, if any, on the Senior Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on, or
Additional Interest, if any, with respect to the Senior Notes;
(ii) default in payment when due of principal of or premium, if any, on
the Senior Notes;
(iii) failure by the Company or any Subsidiary to comply with the
provisions described under Sections 3.09, 4.07, 4.08, 4.09 or 4.15
or Article 5 hereof;
(iv) failure by the Company or any Subsidiary for 60 days after receipt
of written notice given by the Trustee or the holders of at least
25% in principal amount of Senior Notes then outstanding to comply
with its other agreements in this Indenture or the Senior Notes;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date
hereof, which default (A) (i) is caused by a failure to pay when due
at final stated maturity (giving effect to any grace period related
thereto) any principal of or premium, if any, or interest on such
Indebtedness (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity and
(B) in each case, the principal amount of any such Indebtedness as
to which a Payment Default shall have occurred, 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
accelerated, aggregates $5.0 million or more and such default has
not been cured, waived or postponed pursuant to an agreement with
the holders of such Indebtedness within 30 days after written notice
as provided in this Indenture, or such acceleration shall not be
rescinded or annulled within 10 days after written notice as
provided in this Indenture;
(vi) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed within 60 days after
their entry;
(vii) any holder (or person acting on its behalf) of at least $5.0 million
in aggregate principal amount of Indebtedness of the Company or any
of its Restricted Subsidiaries shall, subsequent to the occurrence
of a default with respect to such Indebtedness and in accordance
with the terms of the document or agreement governing such
Indebtedness, commence judicial proceedings to foreclose upon assets
of the Company or any of its Restricted Subsidiaries having an
aggregate fair market value in excess of $5.0 million or shall have
43
exercised any rights under applicable law or applicable security
documents to take ownership of any such assets in lieu of
foreclosure;
(viii) the Company or any Restricted Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor,
(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) admits in writing its inability generally to pay its debts as
the same become due;
(ix) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries in an involuntary case in which it is the debtor,
(ii) appoints a custodian of the Company or any of its Restricted
Subsidiaries or for all or substantially all of the property
of the Company or any of its Restricted Subsidiaries, or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries, and the order or decree contemplated in clauses
(i), (ii) or (iii), remains unstayed and in effect for 60
consecutive days; or
(x) the termination of the Subsidiary Guarantee of any Subsidiary
Guarantor for any reason not permitted by this Indenture, or the
denial of any Person acting on behalf of any such Subsidiary
Guarantor of its Obligations under any such Subsidiary Guarantee.
To the extent that the last day of the period referred to in clauses (i),
(iii), (iv) or (vi) of the immediately preceding paragraph is not a Business
Day, then the first Business Day following such day shall be deemed to be the
last day of the period referred to in such clauses. Any "day" will be deemed to
end as of 11:59 p.m., New York City time.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to the
Company specified in clauses (viii) and (ix) of Section 6.01 hereof) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Senior Notes may declare the unpaid principal of, premium,
if any, interest and Additional Interest, if any, on all the Senior Notes to be
due and payable by notice in writing to the Company (and the Trustee, if given
by the Holders) specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice"), and the same shall become
immediately due and payable. If an Event of Default with respect to the Company
or any Restricted Subsidiary specified in clauses (viii) or (ix) of Section 6.01
hereof occurs, all outstanding Senior Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
44
The Holders of a majority in principal amount of the then outstanding Senior
Notes by written notice to the Trustee may 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 or
interest that has become due solely because of the acceleration) have been cured
or waived.
[In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Senior Notes
pursuant to the optional redemption provisions of Section 3.07(a) hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Senior Notes. If an Event
of Default occurs prior to June 30, 2002 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Senior Notes prior to June 30,
2002, then the amount payable in respect of such Senior Notes for purposes of
this paragraph for each of the twelve-month periods beginning on June 30 of the
years indicated below shall be as set forth below, expressed as percentages of
the principal amount that would otherwise be due but for the provisions of this
sentence, plus accrued and unpaid interest and Additional Interest, if any, to
the date of payment:
Year Percentage
---- ----------
1997.................................................. 114.667%
1998.................................................. 112.833%
1999.................................................. 111.000%
2000.................................................. 109.167%
2001.................................................. 107.333%
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 Additional Interest, if any, on the Senior Notes or to enforce the
performance of any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Senior Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Senior Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of at least a majority in principal amount of the Senior Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for Senior Notes), by notice to the Trustee, may on behalf of the
Holders of all of the Senior Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of principal of or premium, if any, or interest or Additional
Interest, if any, on the Senior Notes. 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.
45
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Senior
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Senior Notes or that may involve
the Trustee in personal liability. The Trustee may take any other action which
it deems proper which is not inconsistent with any such direction.
Section 6.06. Limitation on Suits.
A Holder of a Senior Note may pursue a remedy with respect to this
Indenture, the Senior Notes or the Subsidiary Guarantees only if:
(a) the Holder of a Senior Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from
the Company;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Senior Note or Holders of Senior Notes offer and, if
requested, provide to the Trustee security and 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 Senior Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Senior Note may not use this Indenture to prejudice the
rights of another Holder of a Senior Note or to obtain a preference or priority
over another Holder of a Senior Note.
Section 6.07. Rights of Holders of Senior Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Senior Note to receive payment of principal, premium, if any, and
interest, and Additional Interest, if any, on the Senior Note, on or after the
respective due dates expressed in the Senior Note (including in connection with
an offer to purchase), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Additional Interest, if any, and interest remaining
unpaid on the Senior Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the compensation, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel.
46
Section 6.09. Trustee May File Proofs of Claim.
The Trustee (which term as used in this Section 6.09 shall include any
predecessor 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 under Section 7.07 for the compensation, fees,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Senior Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Senior Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable upon the
conversion or exchange of the Senior Notes or 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, fees, 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, fees, 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 perfected Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise, and such Lien in favor of a predecessor Trustee, if
any, shall be senior to the Lien in favor of the current Trustee. 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 Senior
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
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 Senior Notes for amounts due and unpaid on the
Senior Notes for principal, premium, if any, interest, and Additional Interest,
if any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Notes for principal, premium, if any, and
interest, and Additional Interest, if any, respectively;
Third: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Senior Notes; and
Fourth: 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 Senior Notes 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
47
reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder of a Senior Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing of which it has
knowledge, 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:
(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 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that
the Trustee was 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 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holders shall
have offered and, if requested, provided, to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense
that might be incurred by it in compliance with such request,
direction or exercise.
48
(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 on the truth of the statements and
correctness of the opinions contained in, and shall be protected from
acting or refraining from acting upon, any document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(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.
Prior to taking, suffering or admitting any action, the Trustee may
consult with counsel of the Trustee's own choosing 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.
(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 or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company
or Subsidiary Guarantor, as applicable.
(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 and, if
requested, provided, to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities that might
be incurred by it in compliance with such request, direction or
exercise.
(g) The permissive right of the Trustee to act hereunder shall not be
construed as a duty.
(h) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate.
(i) Except with respect to Section 4.01 hereof, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event
of Default occurring pursuant to Sections 6.01(i) and 6.01(ii) hereof
or (ii) any Default or Event
49
of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
(j) The Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer has actual knowledge thereof or
unless written notice thereof is received by the Trustee at its
Corporate Trust Office and such notice references the Senior Notes
generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner of
Senior Notes and may otherwise deal with the Company, the Subsidiary Guarantors
or any Affiliate of the Company or any Subsidiary Guarantor with the same rights
it would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as Trustee or resign.
Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Subsidiary Guarantees or the
Senior Notes, it shall not be accountable for the Company's use of the proceeds
from the Senior Notes or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Senior Notes or any other document in connection with the
sale of the Senior Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Senior Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in
payment on any Senior Note pursuant to Section 6.01(i) or (ii) hereof, 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 Senior Notes.
Section 7.06. Reports by Trustee to Holders of the Senior Notes.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Senior Notes remain outstanding, the
Trustee shall mail to the Holders of the Senior Notes 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 need be transmitted). The Trustee also shall comply
with TIA (S) 313(b). 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 Senior
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange, if any, on which the Company has informed the Trustee in writing
the Senior Notes are listed in accordance with TIA (S) 313(d). The Company
shall promptly notify the Trustee when the Senior Notes are listed on any stock
exchange and of any delisting thereof.
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Section 7.07. Compensation and Indemnity.
The Company and the Subsidiary Guarantors shall pay to the Trustee from
time to time compensation as agreed upon by the Trustee and the Company, and, in
the absence of any such agreement, reasonable compensation for its acceptance of
this Indenture and services hereunder. To the extent permitted by law, the
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company and the Subsidiary Guarantors 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 and the Subsidiary Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the
Subsidiary Guarantors or any Holder or any other person) or liability in
connection with, relating to, or arising out of (i) the exercise or performance
of any of its powers or duties hereunder or in connection herewith, and (ii) the
validity, invalidity, adequacy or inadequacy of this Indenture, the Subsidiary
Guarantees, the Senior Notes, the Registration Rights Agreement or the Offering
Memorandum, 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 and the Subsidiary Guarantors promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company and the
Subsidiary Guarantors shall not relieve the Company and the Subsidiary
Guarantors of their obligations hereunder. The Company and the Subsidiary
Guarantors shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company and the
Subsidiary Guarantors shall pay the reasonable fees and expenses of such
counsel. The Company and the Subsidiary Guarantors need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Subsidiary Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's and the Subsidiary Guarantors' payment obligations
in this Section 7.07, the Trustee (and each predecessor Trustee) shall have a
perfected Lien prior to the Senior Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, interest
and Additional Interest, if any, on particular Senior Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee. Such Lien in favor of a predecessor Trustee, if any,
shall be senior to the Lien in favor of the current Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(viii) or (ix) 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.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Senior Notes
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may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may, by resolution of its Board of Directors, 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 Senior Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Senior
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Senior Note who
has been a bona fide Holder of a Senior Note for at least six months, fails to
comply with Section 7.10 hereof, such Holder of a Senior Note may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and the duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of its succession to
the Holders of the Senior Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided that 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 or any Agent 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 or any Agent, as applicable.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities, and that has, or in the case of a corporation included in a bank
holding company system the related bank holding company has, a combined capital
and surplus of at least $100.0 million as set forth in its most recent annual
report of condition.
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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 The 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.
Section 7.12 Other Capacities.
All references in this Indenture to the Trustee shall be deemed to refer to
the Trustee in its capacity as Trustee and in its capacities as any Agent, to
the extent acting in such capacities, and every provision of this Indenture
relating to the conduct or affecting the liability or offering protection,
immunity or indemnity to the Trustee shall be deemed to apply with the same
force and effect to the Trustee acting in its capacities as any Agent.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company and the Subsidiary Guarantors may, at the option of their
respective Boards 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 be applied to all outstanding Senior Notes and Subsidiary Guarantees upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each Subsidiary Guarantor
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their respective obligations with
respect to all outstanding Senior Notes and Subsidiary Guarantees on the date
the conditions set forth below are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Company and each Subsidiary
Guarantor shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Senior Notes and Subsidiary Guarantees, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all their respective other obligations under such
Senior Notes and Subsidiary Guarantees and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders
of outstanding Senior Notes to receive payments in respect of the principal of,
premium, if any, and interest and Additional Interest, if any, on such Senior
Notes when such payments are due from the trust referred to in Section 8.04(a);
(b) the Company's obligations with respect to such Senior Notes under Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof; (c) the rights,
powers, trusts, duties and immunities of the Trustee or any Agent, including,
without limitation, under Sections 7.07, 8.05 and 8.07 hereof and the Company's
and the Subsidiary Guarantors' obligations in connection therewith and (d) the
provisions of 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.
53
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Subsidiary Guarantor
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 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.17
hereof with respect to the outstanding Senior Notes and Subsidiary Guarantees on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Senior Notes and Subsidiary Guarantees 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
Senior Notes and Subsidiary Guarantees shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Senior Notes and Subsidiary Guarantees, the Company
or any of its Subsidiaries may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant
listed above, 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 Senior Notes and Subsidiary Guarantees shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(v) through 6.01(vii)
and Section 6.01(x) 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 Senior Notes and Subsidiary Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders of the Senior Notes, (i) cash in United
States dollars, (ii) non-callable Government Securities which through
the scheduled payment of principal, premium, if any, and interest and
Additional Interest, if any, in respect thereof in accordance with
their terms will provide, not later than one day before the due date
of payment, cash in United States dollars in an amount, or (iii) a
combination thereof, in such amounts as shall be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the principal of, premium, if any,
interest and Additional Interest, if any, on the outstanding Senior
Notes on the stated maturity or on the applicable redemption date, as
the case may be, and the Company must specify whether the Senior Notes
are being defeased to maturity or to a particular redemption date;
(b) 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 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 date hereof, 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 Senior Notes shall
not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and shall be subject to federal
income tax on the same amounts, in the same manner and at the same
time as would have been the case if such Legal Defeasance had not
occurred;
54
(c) 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 acceptable to the Trustee confirming that the Holders of
the outstanding Senior Notes shall not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant
Defeasance and shall 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;
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other than a Default of Event or Default
resulting from the borrowing of funds to be applied to such deposit)
or insofar as Sections 6.01(viii) and (ix) hereof are concerned, at
any time in the period ending on the 91st day after the date of
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that after the 91st day following the deposit, the trust
funds shall not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Senior Notes over the other
creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or
the Covenant Defeasance have been complied with; and
(i) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940.
(j) the Trustee shall have received such other documents and assurances as
the Trustee shall have reasonably required.
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 Senior
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Senior Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Senior Notes of all
sums due and to become due thereon in respect of principal, premium, if any,
interest and Additional Interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
55
The Company and the Subsidiary Guarantors shall jointly and severally 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 Senior Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company and be relieved of all liability with respect to 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 The 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,
interest or Additional Interest, if any, on any Senior Note and remaining
unclaimed for one year after such principal, and premium, if any, or interest or
Additional Interest, if any, has become due and payable shall be paid to the
Company on its written request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Senior Note shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such 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
shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable 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 obligations of the Company and the Subsidiary Guarantors
under this Indenture, the Senior Notes and the Subsidiary Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, interest or Additional Interest, if any, on any
Senior Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Senior Notes to receive such
payment from the money held by the Trustee or Paying Agent.
56
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of the Senior Notes.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Senior Notes, the Company and the Trustee may amend or supplement this
Indenture, the Senior Notes or the Subsidiary Guarantees:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or in place
of certificated Senior Notes;
(c) to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to the Holders of the Senior Notes in the case
of a merger, or consolidation pursuant to Article 5 or Article 10
hereof, as applicable;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Senior Notes;
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to allow any Subsidiary Guarantor to guarantee the Senior Notes.
Upon the written request of the Company accompanied by a resolution of its
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Company and
the Subsidiary Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
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 Senior Notes.
Except as provided below in this Section 9.02, this Indenture, the
Senior Notes or the Subsidiary Guarantees may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
Senior Notes then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer, for Senior
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, or premium, if any, or interest or Additional Interest, if any, on
the Senior Notes, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture, the
Senior Notes or the Subsidiary Guarantees may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Senior Notes
(including consents obtained in connection with a purchase of, or a tender offer
or exchange offer for, the Senior Notes).
Upon the request of the Company accompanied by a resolution of its Board of
Directors of the Company 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 Senior Notes as
aforesaid,
57
and upon receipt by the Trustee of the documents described in Section 9.06
hereof, the Trustee shall join with the Company and the Subsidiary Guarantors in
the execution of such amended or supplemental Indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may, 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 Senior Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Senior Note
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 6.02, 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Senior Notes then outstanding may waive
compliance in a particular instance by the Company or the Subsidiary Guarantors
with any provision of this Indenture, the Senior Notes or the Subsidiary
Guarantees. However, without the consent of each Holder affected, an amendment
or waiver may not (with respect to any Senior Note or Subsidiary Guarantee held
by a non-consenting Holder):
(a) reduce the principal amount of Senior Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Senior
Note or alter the provisions with respect to the redemption of the
Senior Notes (other than provisions relating to Sections 3.09, 4.09
and 4.15 hereof);
(c) reduce the rate of or change the time for payment of interest or
Additional Interest, if any, on any Senior Note;
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest or Additional Interest, if any, on the
Senior Notes (except a rescission of acceleration of the Senior Notes
by the Holders of at least a majority in aggregate principal amount of
the Senior Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Senior Note payable in money other than that stated in the
Senior Notes;
(f) make any change in Section 6.04 or 6.07 hereof;
(g) waive a redemption or repurchase payment with respect to any Senior
Note (other than a payment required by Section 4.09 or 4.15 hereof);
(h) make any change affecting the ranking of the Senior Notes in any
manner adverse to the Holders of the Senior Notes;
(i) make any change in the amendment and waiver provisions of this Article
9; or
(j) except as provided in Sections 8.02, 8.03 and 10.04 hereof, release
any of the Subsidiary Guarantors from their obligations under the
Subsidiary Guarantees or make any change in the Subsidiary Guarantees
that would adversely affect the Holders.
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Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture, the Subsidiary Guarantees
or the Senior Notes 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 Senior Note is a continuing consent by the Holder and every
subsequent Holder of a Senior Note or portion of a Senior Note that evidences
the same debt as the consenting Holder's Senior Note, even if notation of the
consent is not made on any Senior Note. However, any such Holder or subsequent
Holder of a Senior Note may revoke the consent as to its Senior Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Senior Notes must consent to such amendment,
supplement or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Senior Notes furnished
for the Trustee prior to such solicitation pursuant to Section 2.05 hereof or
(ii) such other date as the Company shall designate.
Section 9.05. Notation on or Exchange of Senior Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Senior Note thereafter authenticated. The Company
in exchange for all Senior Notes may issue and the Trustee shall authenticate
new Senior Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company and the Subsidiary Guarantors may not sign an amendment or supplemental
Indenture until their respective Boards of Directors approve it. In signing or
refusing to sign 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 Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Company and the Subsidiary Guarantors in
accordance with its terms.
ARTICLE 10
GUARANTEE OF SENIOR NOTES
Section 10.01. Subsidiary Guarantees.
Subject to Section 10.06 hereof, each of the Subsidiary Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Senior
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the
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Senior Notes and the Obligations of the Company hereunder and thereunder, that:
(a) the principal of, premium, if any, interest and Additional Interest, if any,
on the Senior Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any, (to the
extent permitted by law) interest on any interest, if any, and Additional
Interest, if any, on the Senior Notes, and all other payment Obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full and performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Senior
Notes or any of such other Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed or any performance so guaranteed for whatever reason the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the Senior Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall
entitle the Holders to accelerate the Obligations of the Subsidiary Guarantors
hereunder in the same manner and to the same extent as the Obligations of the
Company. The Subsidiary Guarantors hereby agree that their Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Senior Notes or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Subsidiary
Guarantee will not be discharged except by complete performance of the
Obligations contained in the Senior Notes and this Indenture. If any Holder or
the Trustee is required by any court or otherwise to return to the Company, the
Subsidiary Guarantors, or any Senior Note Custodian, Trustee, liquidator or
other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by the Company or any Subsidiary
Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to, and hereby
waives, any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as
between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
its Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantees.
Section 10.02. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof,
each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Exhibit D hereto shall be endorsed by
---------
manual or facsimile signature by an Officer of such Subsidiary Guarantor on each
Senior Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Subsidiary Guarantor, by manual or facsimile
signature, by an Officer of such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Subsidiary Guarantee.
60
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Senior Note on which a Subsidiary Guarantee is endorsed, the Subsidiary
Guarantee shall be valid nevertheless.
The delivery of any Senior Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 10.03. Subsidiary Guarantors May Consolidate, etc., on Certain Terms
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained in
this Indenture shall prohibit a merger between a Subsidiary Guarantor and
another Subsidiary Guarantor or a merger between a Subsidiary Guarantor and the
Company.
(b) No Subsidiary Guarantor shall consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person), another
Person whether or not affiliated with such Subsidiary Guarantor unless, other
than with respect to a merger between a Subsidiary Guarantor and another
Subsidiary Guarantor or a merger between a Subsidiary Guarantor and the Company,
(i) subject to the provisions of Section 10.04 hereof, the Person formed by or
surviving any such consolidation or merger (if other than such Subsidiary
Guarantor) assumes all the obligations of such Subsidiary Guarantor pursuant to
a supplemental indenture substantially in the form of Exhibit E hereto, under
---------
the Senior Notes and this Indenture; (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists; and (iii) the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.08 hereof.
(c) In the case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and substantially in the form of Exhibit E hereto,
---------
of the Subsidiary Guarantee endorsed upon the Senior Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor; provided that, solely for
purposes of computing Consolidated Net Income for purposes of clause (b) of the
first paragraph of Section 4.07 hereof, the Consolidated Net Income of any
Person other than the Company and its Subsidiaries shall only be included for
periods subsequent to the effective time of such merger, consolidation,
combination or transfer of assets. Such successor Person thereupon may cause to
be signed any or all of the Subsidiary Guarantees to be endorsed upon all of the
Senior Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee. All of the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
Section 10.04. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets of any
Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of any Subsidiary Guarantor, then
such Subsidiary Guarantor (in the event of a sale or other disposition, by way
of such a merger, consolidation or otherwise, of all of the capital stock of
such Subsidiary Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all of the assets of such Subsidiary
Guarantor) shall be released and relieved of any obligations under its
Subsidiary Guarantee; provided that (i) in the event of an Asset Sale, the Net
Proceeds from such sale or other dispositions are treated in accordance with the
provisions of Section 4.09 hereof and (ii) the Company is in compliance with all
other provisions of
61
this Indenture applicable to such disposition. Upon delivery by the Company to
the Trustee of an Officers' Certificate to the effect of the foregoing, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any Subsidiary Guarantor from its Obligation under its Subsidiary
Guarantee. Any Subsidiary Guarantor not released from its Obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of,
premium, if any, interest and Additional Interest, if any, on the Senior Notes
and for the other Obligations of such Subsidiary Guarantor under this Indenture
as provided in this Article 10.
Section 10.05. Limitation on Subsidiary Guarantor Liability.
For purposes hereof, each Subsidiary Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the Senior Notes and this Indenture and (ii) the amount, if any, which
would not have (A) rendered such Subsidiary Guarantor "insolvent" (as such term
is defined in the Bankruptcy Law and in the Debtor and Creditor Law of the State
of New York) or (B) left such Subsidiary Guarantor with unreasonably small
capital at the time its Subsidiary Guarantee of the Senior Notes was entered
into; provided that, it will be a presumption in any lawsuit or other proceeding
in which a Subsidiary Guarantor is a party that the amount guaranteed pursuant
to the Subsidiary Guarantee is the amount set forth in clause (i) above unless
any creditor, or representative of creditors of such Subsidiary Guarantor, or
debtor in possession or trustee in bankruptcy of the Subsidiary Guarantor,
otherwise proves in such a lawsuit that the aggregate liability of the
Subsidiary Guarantor is the amount set forth in clause (ii) above. In making
any determination as to solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the previous sentence, the right of such Subsidiary
Guarantor to contribution from other Subsidiary Guarantors, and any other rights
such Subsidiary Guarantor may have, contractual or otherwise, shall be taken
into account.
Section 10.06. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article 10 shall in each case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully and for all intents and purposes as if such Paying Agent were
named in this Article 10 in place of the Trustee.
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, any Subsidiary Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
62
If to the Company or any Subsidiary Guarantor:
▇▇▇▇▇▇ Holdings, Inc.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to the Trustee:
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
The Company, any Subsidiary Guarantor 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 (5) Business Days after being deposited in the mail, postage
prepaid, if mailed; 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
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,
except for notices or communications to the Trustee which shall be effective
only upon actual receipt thereof.
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 Senior Notes with Other Holders of
Senior Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Senior Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
63
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary Guarantor
to the Trustee to take any action under this Indenture, the Company or such
Subsidiary Guarantor 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 Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the Company
or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company under the Senior Notes, any Subsidiary Guarantee,
this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Senior Notes by accepting a
Senior Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior Notes and the Subsidiary
Guarantees.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE SENIOR NOTES AND THE SUBSIDIARY GUARANTEES.
64
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 and the Subsidiaries Guarantors in this
Indenture, the Senior Notes and the Subsidiary Guarantees shall bind their
respective successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
Section 11.11. Severability.
In case any provision in this Indenture, the Senior Notes or in the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 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.
[signature page follows]
65
SIGNATURES
Dated as of June 27, 1997 ▇▇▇▇▇▇ Holdings, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Dated as of June 27, 1997 AmeriTel Pay Phones, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Dated as of June 27, 1997 ▇▇▇▇▇▇ Telecommunications Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Dated as of June 27, 1997 ▇▇▇▇▇▇ Telecommunications of Carolina, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Dated as of June 27, 1997 ▇▇▇▇▇▇ STC, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
U.S. Trust Company of Texas, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Dated as of June 27, 1997
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-1
Exhibit A-1
-----------
(Face of Senior Note)
11% Senior Notes due 2007, Series [A/B]
No. ___ $_______________
CUSIP NO. 87483B AA 6
▇▇▇▇▇▇ HOLDINGS, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
___________ Dollars on June 30, 2007.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Dated: June 27, 1997
▇▇▇▇▇▇ Holdings, Inc.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
This is one of the Senior Notes
referred to in the
within-mentioned Indenture:
Dated: June 27, 1997
U.S. Trust Company of Texas, N.A.
as Trustee
By:
-----------------------------
EXHIBIT A-1 -- Page 1
(Back of Senior Note)
▇▇▇▇▇▇ Holdings, Inc.
11% Senior Notes due 2007, Series [A/B]
[Unless and until it is exchanged in whole or in part for Senior Notes in
definitive form, this Senior Note may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the
registered owner hereof, Cede & Co., has an interest herein.]/1/
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. 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 THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE
UNITED STATES 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 OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH
CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH 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.]/2/
------------
/1/ This paragraph should be included only if the Senior Note is issued in
global form.
/2/ This paragraph should be removed upon the exchange of Series A Notes for
Series B Notes in the Exchange Offer or upon the registration of the Series A
Notes pursuant to the terms of the Registration Rights Agreement
EXHIBIT A-1 -- Page 2
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest.
▇▇▇▇▇▇ Holdings, Inc., a Delaware corporation, or its successor (the
"Company"), promises to pay interest on the principal amount of this
Senior Note at the rate of 11.0% per annum and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Additional
Interest, if any, in United States dollars (except as otherwise provided
herein) semi-annually in arrears on each January 1 and July 1, commencing
on January 1, 1998, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on
the Senior Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default or Event of Default in the
payment of interest, and if this Senior Note is authenticated between a
record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date, except in the case of the original issuance of
Senior Notes, in which case interest shall accrue from the date of
authentication. 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 Senior Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional
Interest (without regard to any applicable grace period) at the same rate
to the extent lawful. Interest shall be computed on the basis of a 360-
day year comprised of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Senior Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are
registered Holders of Senior Notes at the close of business on the
December 15 or June 15 next preceding the Interest Payment Date, even if
such Senior Notes are cancelled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Senior Notes shall be
payable as to principal, premium, if any, interest and Additional
Interest, if any, 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 Additional Interest, if
any, may be made by check mailed to the Holders at their addresses set
forth in the register of Holders; provided that payment by wire transfer
of immediately available funds shall be required with respect to principal
of, and interest, premium and Additional Interest, if any, on, all Global
Notes and all other Senior Notes the Holders of which shall have provided
written wire transfer instructions to the Company or the Paying Agent.
Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts.
3. Paying Agent and Registrar.
Initially, U.S. Trust Company of Texas, N.A., the Trustee under the
Indenture, shall act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
EXHIBIT A-1 -- Page 3
4. Indenture.
The Company issued the Senior Notes under an Indenture dated as of June
27, 1997 (as amended or supplemented from time to time, the "Indenture")
among the Company, the Subsidiary Guarantors and the Trustee. The terms
of the Senior Notes include those stated in the Indenture and those made a
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the "TIA"). The Senior Notes
are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Senior Notes are general
unsecured Obligations of the Company limited to $115,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium, if any,
interest or Additional Interest, if any, on outstanding Senior Notes as
set forth in Paragraph 2 hereof.
5. Optional Redemption.
Except as set forth in the next paragraph, the Senior Notes shall not
be redeemable at the Company's option prior to June 30, 2002. Thereafter,
the Senior Notes shall be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal
amount) set forth below together with accrued and unpaid interest and any
Additional Interest, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 30 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2002..................................... 105.500%
2003..................................... 103.667%
2004..................................... 101.833%
2005 and thereafter...................... 100.000%
Notwithstanding the foregoing, at any time prior to June 30, 2000, the
Company may on any one or more occasions redeem up to 30% of the original
aggregate principal amount of Senior Notes at a redemption price of 111.0%
of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the redemption date with the net proceeds
of an Equity Offering of the Company; provided that at least $80.0 million
aggregate principal amount of Senior Notes originally issued remains
outstanding immediately after the occurrence of any such redemption; and
provided, further, that such redemption shall occur within 90 days of the
date of the closing of any such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with
respect to the Senior Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Notes will 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
Senior Notes 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 Additional Interest,
if any, thereon, to the date of purchase. Within 30 days following any
Change of Control, the Company will mail a notice to each Holder
describing the
EXHIBIT A-1 -- Page 4
transaction or transactions that constitute the Change of Control setting
forth the procedures governing the Change of Control Offer required by
the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company shall offer to all Holders of Senior Notes (an "Asset Sale
Offer") to purchase the maximum principal amount of Senior Notes that may
be purchased out of the Excess Proceeds at an offer price in cash equal
to 100% of principal amount thereof, plus accrued and unpaid interest,
and Additional Interest thereon, if any, to the date of purchase in
accordance with the procedures set forth in the Indenture. To the extent
that the aggregate amount of Senior Notes tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for any general corporate purposes. If the
aggregate principal amount of Senior Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the
Senior Notes to be purchased on a pro rata basis.
(c) Holders of the Senior Notes that are the subject of an offer to
purchase will receive a Change of Control Offer or Asset Sale Offer from
the Company prior to any related purchase date and may elect to have such
Senior Notes purchased by completing the form titled "Option of Holder to
Elect Purchase" appearing below.
8. Notice of Redemption.
Notice of redemption shall be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Senior Notes
are to be redeemed at its registered address. Senior Notes in
denominations larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000, unless all of the Senior Notes held by a
Holder are to be redeemed. On and after the redemption date, interest and
Additional Interest, if any, ceases to accrue on the Senior Notes or
portions thereof called for redemption.
9. Denominations, Transfer, Exchange.
The Senior Notes are in registered form without coupons in initial
denominations of $1,000 and integral multiples of $1,000. The transfer of
the Senior Notes may be registered and the Senior Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Senior Note or portion of a
Senior Note selected for redemption, except for the unredeemed portion of
any Senior Note being redeemed in part. Also, it need not exchange or
register the transfer of any Senior Notes for a period of 15 days before
a selection of Senior Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners.
The registered Holder of a Senior Note may be treated as its owner for
all purposes.
11. Amendment, Supplement and Waiver.
Subject to the following paragraph, the Indenture, the Senior Notes
and the Subsidiary Guarantees may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the
Senior Notes then outstanding (including, without limitation, consents
EXHIBIT A-1 -- Page 5
obtained in connection with a purchase of or, tender offer or exchange
offer for Senior Notes), and any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal
of, premium, if any, interest or Additional Interest, if any, on the
Senior Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of the
Indenture, the Senior Notes or the Subsidiary Guarantees may be waived
with the consent of the Holders of a majority in principal amount of the
then outstanding Senior Notes (including consents obtained in connection
with a tender offer or exchange offer for Senior Notes).
Without the consent of any Holder of Senior Notes, the Company and the
Trustee may amend or supplement the Indenture, the Subsidiary Guarantees
or the Senior Notes to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Senior Notes in addition to or in place of
certificated Senior Notes, to provide for the assumption of the Company's
or a Subsidiary Guarantor's obligations to Holders of Senior Notes in the
case of a merger or consolidation, to make any change that would provide
any additional rights or benefits to the Holders of Senior Notes 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 or to allow any Subsidiary Guarantor to guarantee the
Senior Notes.
12. Defaults and Remedies.
Events of Default include: (i) default for 30 days in the payment when
due of interest on or Additional Interest, if any, with respect to the
Senior Notes; (ii) default in payment when due of the principal of or
premium, if any, on the Senior Notes; (iii) failure by the Company or any
Subsidiary to comply with the provisions described in Sections 3.09,
4.07, 4.08, 4.09, 4.15 or 5.01 of the Indenture; (iv) failure by the
Company or any Subsidiary for 60 days after notice from the Trustee or
the Holders of at least 25% in principal amount of the Senior Notes then
outstanding to comply with its other agreements in the Indenture or the
Senior Notes; (v) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
their its Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the date hereof, which default
(A) (i) is caused by a failure to pay when due at final stated maturity
(giving effect to any grace period related thereto) any principal of or
premium, if any, or interest on such Indebtedness (a "Payment Default")
or (ii) results in the acceleration of such Indebtedness prior to its
express maturity and (B) in each case, the principal amount of any such
Indebtedness as to which a Payment Default shall have occurred, 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
accelerated, aggregates $5.0 million or more and such default has not
been cured, waived or postponed pursuant to an agreement with the holders
of such Indebtedness within 30 days after written notice as provided in
the Indenture, or such acceleration shall not be rescinded or annulled
within 10 days after written notice as provided in the Indenture; (vi)
failure by the Company or any of its Restricted Subsidiaries to pay final
judgments aggregating in excess of $5.0 million, which judgments are not
paid discharged or stayed within 60 days after their entry; (vii) any
holder (or person acting on its behalf) of at least $5.0 million in
aggregate principal amount of Indebtedness of the Company or any of its
Restricted Subsidiaries shall, subsequent to the occurrence of a default
with respect to such Indebtedness and in accordance with the terms of the
document or agreement governing such Indebtedness, commence judicial
proceedings to foreclose upon assets of the Company or any of its
Restricted Subsidiaries having an aggregate fair market value in excess
of $5.0 million or shall have exercised any rights under applicable law
or applicable security documents to take ownership of any such assets in
lieu
EXHIBIT A-1 -- Page 6
of foreclosure; (viii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries; and (ix)
the termination of the Subsidiary Guarantee of any Subsidiary Guarantor
for any reason not permitted by the Indenture, or the denial of any
Person acting on behalf of any Subsidiary Guarantor of its Obligations
under any such Subsidiary Guarantee.
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
Senior Notes may declare all the Senior Notes to be due and payable by
notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a "notice of acceleration" and
the same shall become immediately due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency with respect to the Company or any Restricted
Subsidiary, all outstanding Senior Notes will become due and payable
without further action or notice. Holders of the Senior Notes may not
enforce the Indenture or the Senior Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Senior Notes may direct the
Trustee in its exercise of any trust or power. The Holders of a majority
in aggregate principal amount of the Senior Notes then outstanding, by
notice to the Trustee, may on behalf of the Holders of all of the Senior
Notes 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 or Additional Interest, if any, on, or principal
of, the Senior Notes. The Trustee may withhold from Holders of the Senior
Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal,
interest or Additional Interest, if any) if it determines that
withholding notice is in such Holders' interest. The Company is required
to deliver to the Trustee quarterly 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, the
Subsidiary Guarantors or their respective Affiliates, and may otherwise
deal with the Company, the Subsidiary Guarantors or their respective
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder, of the
Company or any Subsidiary Guarantor, as such, shall have any liability
for any obligations of the Company or any Subsidiary Guarantor under the
Senior Notes, the Indenture or the Subsidiary Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Senior Notes by accepting a Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes and any Subsidiary
Guarantee.
15. Authentication.
This Senior Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
EXHIBIT A-1 -- Page 7
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 Transfer Restricted Securities.
In addition to the rights provided to Holders of the Senior Notes
under the Indenture, Holders of Transferred Restricted Securities (as
defined in the Registration Rights Agreement) shall have all the rights
set forth in the Registration Rights Agreement, dated as of the date of
the Indenture, among the Company, the Subsidiary Guarantors and the
Initial Purchaser (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 Senior Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Senior Notes or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers
placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
▇▇▇▇▇▇ Holdings, Inc.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
EXHIBIT A-1 -- Page 8
Assignment Form
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him.
Date:
-----------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the face
of this Senior Note)
Signature Guarantee:
EXHIBIT A-1 -- Page 9
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the Company
pursuant to Section 4.09 or 4.15 of the Indenture, check the box below:
[ ] Section 4.09 [ ] Section 4.15
If you want to elect to have only part of the Senior Note purchased by the
Company pursuant to Section 4.09 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 Senior Note)
Tax Identification No.:
-------------
Signature Guarantee:
EXHIBIT A-1 -- Page 10
SCHEDULE OF EXCHANGES OF SENIOR NOTES/3/
The following exchanges of a part of this Global Note for other Senior Notes
have been made:
-----------------------------------------------------------------------------------------------------------------------------------
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Principal Amount of this Principal Amount of this Global Note following officer of Trustee or
Global Note Global Note such decrease (or Senior Note Custodian
increase)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------
/3/ This should be included only if the Senior Note is issued in global form.
EXHIBIT A-1 -- Page 11
Exhibit A-2
-------
(Face of Regulation S Temporary Global Note)
11% Senior Notes due 2007, Series [A/B]
No. ___ $_______________
CUSIP NO. U83095 AA 4
▇▇▇▇▇▇ HOLDINGS, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of No
Dollars on June 30, 2007.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Dated: June 27, 1997
▇▇▇▇▇▇ Holdings, Inc.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
This is one of the Senior Notes
referred to in the
within-mentioned Indenture:
Dated: June 27, 1997
U.S. Trust Company of Texas, N.A.,
as Trustee
By:
------------------------------
EXHIBIT A-2 -- Page 1
(Back of Regulation S Temporary Global Note)
11% Senior Note due 2007, Series [A/B]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES IN
DEFINITIVE FORM, THIS SENIOR NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"),▇▇ THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. 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 THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED
STATES 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
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) or (7) OF THE SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SENIOR NOTES LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH 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.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SENIOR NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON PRIOR TO THE
EXHIBIT A-2 -- Page 2
EXCHANGE OF THIS SENIOR NOTE FOR A REGULATION S TEMPORARY GLOBAL NOTE AS
CONTEMPLATED BY THE INDENTURE.
▇▇▇▇▇▇ Holdings, Inc., a Delaware corporation, or its successor (the
"Company"), promises to pay interest on the principal amount of this Senior Note
at the rate of 11.0% per annum and shall pay the Additional Interest, if any,
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Additional Interest, if any, in United
States dollars semi-annually in arrears on each January 1 and July 1, commencing
on January 1, 1998, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Senior Notes shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that
if there is no existing Default or Event of Default in the payment of interest,
and if this Senior Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date, except in the case of
the original issuance of Senior Notes, in which case interest shall accrue from
the date of authentication. 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 Senior Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest (without regard to any
applicable grace period) at the same rate to the extent lawful. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
This Regulation S Temporary Global Note is issued in respect of an issue of
11% Senior Notes due 2007 (the "Senior Notes") of the Company, limited to
$115,000,000 in aggregate principal amount, plus amounts, if any, sufficient to
pay premium, if any, interest or Additional Interest, if any on outstanding
Senior Notes. The Company issued Senior Notes under an Indenture (as amended or
supplemented from time to time, the "Indenture") dated as of June 27, 1997,
among the Company, the Subsidiary Guarantors and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee"). This Regulation S Temporary Global Note is
governed by the terms and conditions of the Indenture governing the Senior
Notes, which terms and conditions are incorporated herein by reference and,
except as otherwise provided herein, shall be binding on the Company and the
Holder hereof as if fully set forth herein. Unless the context otherwise
requires, the terms used herein shall have the meanings specified in the
Indenture.
Until this Regulation S Temporary Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest and Additional Interest, if any, hereon although interest
and Additional Interest, if any, will continue to accrue; until so exchanged in
full, this Regulation S Temporary Global Note shall in all other respects be
entitled to the same benefits as other Senior Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Regulation S Permanent Global Notes or 144A Global Notes 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 Note for one or more Regulation S
Permanent Global Notes or 144A Global Notes, the Trustee shall cancel this
Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This
Regulation S Temporary Global Note shall be governed by and construed in
accordance with the laws of the State of the New York. All references to "$,"
"Dollars," "dollars" or "U.S. $" are to such coin or
EXHIBIT A-3 -- Page 3
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts therein.
EXHIBIT A-2 -- Page 4
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary Global Note for
other Global Notes have been made:
--------------------------------------------------------------------------------------------------------------------
Amount of decrease in Amount of increase in Principal Amount of this Signature of
Principal Amount Principal Amount Global Note authorized officer of
of this Global of this Global following such decrease Trustee or Senior Note
Date of Exchange Note Note (or increase) Custodian
------------------ --------------------- --------------------- ------------------------- ----------------------
--------------------------------------------------------------------------------------------------------------------
EXHIBIT A-2 -- Page 5
Exhibit B-1
-------
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 11% Senior Notes due 2007 of ▇▇▇▇▇▇ Holdings, Inc.
Reference is hereby made to the Indenture, dated as of June 27, 1997 (as
amended or supplemented from time to time, the "Indenture"), among ▇▇▇▇▇▇
Holdings, Inc. (the "Company"), AmeriTel Pay Phones, Inc. ("AmeriTel"), ▇▇▇▇▇▇
Telecommunications Corporation ("▇▇▇▇▇▇ Telecommunications"), ▇▇▇▇▇▇
Telecommunications of Carolina, Inc. ("▇▇▇▇▇▇ of Carolina"), ▇▇▇▇▇▇ STC, Inc.
("▇▇▇▇▇▇ STC" and, together with AmeriTel, ▇▇▇▇▇▇ Telecommunications and ▇▇▇▇▇▇
of Carolina, the "Subsidiary Guarantors") and U.S. Trust Company of Texas, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $ _______________ principal amount of Senior Notes
which are evidenced by one or more 144A Global Notes and held with the
Depository in the name of _______________ (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Senior Notes to a
Person who will take delivery thereof in the form of an equal principal amount
of Senior Notes evidenced by one or more Regulation S Global Notes, which
amount, immediately after such transfer, is to be held with the Depository
through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior Notes, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
hereby further certifies that:
(1) The offer of the Senior Notes was not made to a person in the United
States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depository
through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest in a
144A Global Note for a beneficial interest in a Regulation S Global Note, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to Regulation S Global Notes pursuant to the Indenture and the
Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Notes, the
additional restrictions applicable to transfers of interest in the Regulation S
Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and CIBC Wood
Gundy Securities Corp., the initial purchaser of such Senior Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
------------------------
cc: ▇▇▇▇▇▇ Holdings, Inc.
CIBC Wood Gundy Securities Corp.
EXHIBIT B-1 -- Page 2
Exhibit B-2
-------
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 11% Senior Notes due 2007 of ▇▇▇▇▇▇ Holdings, Inc.
Reference is hereby made to the Indenture dated as of June 27, 1997 (as
amended or supplemented from time to time, the "Indenture"), among ▇▇▇▇▇▇
Holdings, Inc. (the "Company"), AmeriTel Pay Phones, Inc. ("AmeriTel"), ▇▇▇▇▇▇
Telecommunications Corporation ("▇▇▇▇▇▇ Telecommunications"), ▇▇▇▇▇▇
Telecommunications of Carolina, Inc. ("▇▇▇▇▇▇ of Carolina"), ▇▇▇▇▇▇ STC, Inc.
("▇▇▇▇▇▇ STC" and, together with AmeriTel, ▇▇▇▇▇▇ Telecommunications and ▇▇▇▇▇▇
of Carolina, the "Subsidiary Guarantors") and U.S. Trust Company of Texas, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $_________ principal amount of Senior Notes which
are evidenced by one or more Regulation S Global Notes and held with the
Depository through Euroclear or Cedel in the name of (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Senior
Notes to a Person who will take delivery thereof in the form of an equal
principal amount of Senior Notes evidenced by one or more 144A Global Notes, to
be held with the Depository.
In connection with such request and in respect of such Senior Notes, the
Transferor hereby certifies that:
[CHECK ONE]
[ ] such 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
Senior Notes are being transferred to a Person that the Transferor
reasonably believes is purchasing the Senior Notes 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;
or
[ ] such transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the Transferor
further certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in Global Notes and Definitive Senior
Notes bearing the
EXHIBIT B-2 -- Page 1
Private Placement Legend and the requirements of the exemption claimed,
which certification is supported by (x) if such transfer is in respect of a
principal amount of Senior Notes at the time of Transfer of $100,000 or
more, a certificate executed by the Transferee in the form of Exhibit C to
---------
the Indenture, or (y) if such Transfer is in respect of a principal amount
of Senior Notes at the time of transfer of less than $100,000, (1) a
certificate executed in the form of Exhibit C to the Indenture and (2) an
---------
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
(1) such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of any state
of the United States;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or Rule
144, and the Transferor hereby further certifies that the Senior Notes are
being transferred in compliance with the transfer restrictions applicable to
the Global Notes and in accordance with the requirements of the exemption
claimed, which certification is supported by an Opinion of Counsel, provided
by the transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the Company
and to the Registrar, to the effect that such transfer is in compliance with
the Securities Act;
and such Senior Notes are being transferred in compliance with any applicable
blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Senior Notes,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to 144A Global Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and CIBC Wood
Gundy Securities Corp., the initial purchaser of such Senior Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
----------------------
cc: ▇▇▇▇▇▇ Holdings, Inc.
CIBC Wood Gundy Securities Corp.
EXHIBIT B-2 -- Page 2
Exhibit B-3
-------
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR NOTES
(Pursuant to Section 2.06(b) of the Indenture)
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 11% Senior Notes due 2007 of ▇▇▇▇▇▇ Holdings, Inc.
Reference is hereby made to the Indenture dated as of June 27, 1997 (as
amended or supplemented from time to time, the "Indenture"), among ▇▇▇▇▇▇
Holdings, Inc. (the "Company"), AmeriTel Pay Phones, Inc. ("AmeriTel"), ▇▇▇▇▇▇
Telecommunications Corporation ("▇▇▇▇▇▇ Telecommunications"), ▇▇▇▇▇▇
Telecommunications of Carolina, Inc. ("▇▇▇▇▇▇ of Carolina"), ▇▇▇▇▇▇ STC, Inc.
("▇▇▇▇▇▇ STC" and, together with AmeriTel, ▇▇▇▇▇▇ Telecommunications and ▇▇▇▇▇▇
of Carolina, the "Subsidiary Guarantors") and U.S. Trust Company of Texas, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This relates to $ ___________ principal amount of Senior Notes which are
evidenced by one or more Definitive Senior Notes in the name of
__________________ (the "Transferor"). The Transferor has requested an
exchange or transfer of such Definitive Senior Note(s) in the form of an equal
principal amount of Senior Notes evidenced by one or more Definitive Senior
Notes, to be delivered to the Transferor or, in the case of a transfer of such
Senior Notes, to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Notes"), the Holder of such Surrendered Senior Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Notes are being acquired for the Transferor's own
account, without transfer;
or
[ ] the Surrendered Senior Notes are being transferred to the Company;
or
[ ] the Surrendered Senior Notes are being transferred 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 Surrendered Senior Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Senior Notes 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 each case in a transaction meeting the
requirements of Rule 144A;
EXHIBIT B-3 -- Page 1
or
[ ] the Surrendered Senior Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Notes bearing the Private Placement Legend and
the requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount of
Senior Notes at the time of Transfer of $100,000 or more, a certificate
executed by the Transferee in the form of Exhibit C to the Indenture, or
---------
(y) if such Transfer is in respect of a principal amount of Senior Notes
at the time of transfer of less than $100,000, (1) a certificate executed
in the form of Exhibit C to the Indenture and (2) an Opinion of Counsel
---------
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that (1)
such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of
the exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Senior Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
EXHIBIT B-3 -- Page 2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and CIBC Wood
Gundy Securities Corp., the initial purchaser of such Senior Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
-------------------
cc: ▇▇▇▇▇▇ Holdings, Inc.
CIBC Wood Gundy Securities Corp.
EXHIBIT B-3 -- Page 3
Exhibit B-4
-------
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR NOTE
(Pursuant to Section 2.06(c) of the Indenture)
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 11% Senior Notes due 2007 of ▇▇▇▇▇▇ Holdings, Inc.
Reference is hereby made to the Indenture dated as of June 27, 1997 (as
amended or supplemented from time to time, the "Indenture"), among ▇▇▇▇▇▇
Holdings, Inc. (the "Company"), AmeriTel Pay Phones, Inc. ("AmeriTel"), ▇▇▇▇▇▇
Telecommunications Corporation ("▇▇▇▇▇▇ Telecommunications"), ▇▇▇▇▇▇
Telecommunications of Carolina, Inc. ("▇▇▇▇▇▇ of Carolina"), ▇▇▇▇▇▇ STC, Inc.
("▇▇▇▇▇▇ STC" and, together with AmeriTel, ▇▇▇▇▇▇ Telecommunications and ▇▇▇▇▇▇
of Carolina, the "Subsidiary Guarantors") and U.S. Trust Company of Texas, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Senior Notes which
are evidenced by a beneficial interest in one or more 144A Global Notes or
Regulation S Permanent Global Notes in the name of ____________________ (the
"Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest in the form of an equal principal amount of Senior Notes
evidenced by one or more Definitive Senior Notes, to be delivered to the
Transferor or, in the case of a transfer of such Senior Notes, to such Person as
the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Notes
surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Notes"), the Holder of such Surrendered Senior Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Notes are being transferred to the beneficial owner
of such Senior Notes;
or
[ ] the Surrendered Senior Notes are being transferred 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 Surrendered Senior Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Senior Notes 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 each case in a transaction meeting
they requirements of Rule 144A;
or
EXHIBIT B-4 -- PAGE 1
[ ] the Surrendered Senior Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
[ ] the Surrendered Senior Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Notes bearing the Private Placement Legend and
the requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount of
Senior Notes at the time of Transfer of $100,000 or more, a certificate
executed by the Transferee in the form of Exhibit C to the Indenture, or
---------
(y) if such Transfer is in respect of a principal amount of Senior Notes
at the time of transfer of less than $100,000, (1) a certificate executed
in the form of Exhibit C to the Indenture and (2) an Opinion of Counsel
---------
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that (1)
such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of
the exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Senior Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
EXHIBIT B-4 -- Page 2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Subsidiary Guarantors and CIBC Wood
Gundy Securities Corp., the initial purchaser of such Senior Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated:
-----------------------
cc: ▇▇▇▇▇▇ Holdings, Inc.
CIBC Wood Gundy Securities Corp.
EXHIBIT B-4 -- Page 3
Exhibit C
---------
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 11% Senior Notes due 2007 of ▇▇▇▇▇▇ Holdings, Inc.
Reference is hereby made to the Indenture, dated as of June 27, 1997
(as amended or supplemented from time to time, the "Indenture"), among ▇▇▇▇▇▇
---------
Holdings, Inc., as issuer, AmeriTel Pay Phones, Inc., ▇▇▇▇▇▇ Telecommunications
Corporation, ▇▇▇▇▇▇ Telecommunications of Carolina, Inc., ▇▇▇▇▇▇ STC, Inc. and
U.S. 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.
In connection with our proposed purchase of $__________ aggregate
principal amount of:
(a) [ ] Beneficial interests, or
(b) [ ] Definitive Senior Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior Notes of
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Senior Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Notes have
not been registered under the Securities Act, and that the Senior Notes and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Senior Notes or
any interest therein, (A) we will do so 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 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 of the Securities Act, (d) to an institutional
"Accredited Investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the
Securities Act (an "Institutional Accredited Investor")) that, prior to such
transfer, furnishes the Trustee a signed letter to the effect set forth herein
and, if such transfer is in respect of an aggregate principal amount of Senior
Notes less than $100,000, an opinion of counsel acceptable to the Company that
such transfer is in compliance with the Securities Act or (e) in accordance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel), (2) to the Company or any of its subsidiaries
or (3) pursuant to an effective registration statement and, in each case, in
accordance with any applicable securities laws of any State of the
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ or any other applicable jurisdiction and (B) we will, and each
subsequent holder will be required to, notify any purchaser from it of the
security evidenced hereby of the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior Notes or
beneficial interests, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Senior Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Notes, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Senior Notes or beneficial interests therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
6. We are not acquiring the Senior Notes with a view to any
distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
______________________________
[Insert Name of Accredited Investor]
By:
-----------------------------------
Name:
Title:
Dated: ______________, ____
cc: ▇▇▇▇▇▇ Holdings, Inc.
CIBC Wood Gundy Securities Corp.
EXHIBIT C - Page 2
Exhibit D
-------
SUBSIDIARY GUARANTEE
Each Subsidiary Guarantor hereby, jointly and severally, unconditionally
guarantees to each Holder of a Senior Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture dated as of June 27, 1997 among the
Company, the Subsidiary Guarantors and the Trustee (as amended or supplemented
from time to time, the "Indenture"), the Senior Notes and the Obligations of the
Company under the Senior Notes or under the Indenture, that: (a) the principal
of, premium, if any, interest and Additional Interest, if any, on the Senior
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any, (to the extent permitted by law)
interest on any interest, if any, and Additional Interest, if any, on the Senior
Notes and all other payment Obligations of the Company to the Holders or the
Trustee under the Indenture or under the Senior Notes will be promptly paid in
full and performed, all in accordance with the terms thereof; and (b) in case of
any extension of time of payment or renewal of any Senior Notes or any of such
other payment Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Subsidiary
Guarantors will be jointly and severally obligated to pay the same immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 10 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Articles 10 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Section 10.04 of the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Senior Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Senior Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the Senior Notes and the Indenture and (ii) the amount, if any, which
would not have (A) rendered such Subsidiary Guarantor "insolvent" (as such term
is defined in the Bankruptcy Law and in the Debtor and Creditor Law of the State
of New York) or (B) left such Subsidiary Guarantor with unreasonably small
capital at the time its Subsidiary Guarantee of the Senior Notes was entered
into; provided that, it will be a presumption in any lawsuit or other proceeding
in which a Subsidiary Guarantor is a party that the amount guaranteed pursuant
to the Subsidiary Guarantee is the amount set forth in clause (i) above unless
any creditor, or representative of creditors of such Subsidiary Guarantor, or
debtor in possession or trustee in bankruptcy of such Subsidiary Guarantor,
otherwise proves in such a lawsuit that the aggregate liability of the
Subsidiary Guarantor is limited to the amount set forth in clause (ii) above.
The Indenture provides that, in making any determination as to the solvency or
sufficiency of capital
EXHIBIT D - Page 1
of a Subsidiary Guarantor in accordance with the previous sentence, the right of
such Subsidiary Guarantors to contribution from other Subsidiary Guarantors and
any other rights such Subsidiary Guarantors may have, contractual or otherwise,
shall be taken into account.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
Dated as of June 27, 1997 AmeriTel Pay Phones, Inc.
By:
-----------------------------------------
Name:
Title:
Dated as of June 27, 1997 ▇▇▇▇▇▇ Telecommunications Corporation
By:
-----------------------------------------
Name:
Title:
Dated as of June 27, 1997 ▇▇▇▇▇▇ Telecommunications of Carolina, Inc.
By:
-----------------------------------------
Name:
Title:
Dated as of June 27, 1997 ▇▇▇▇▇▇ STC, Inc.
By:
-----------------------------------------
Name:
Title:
EXHIBIT D - Page 2
Exhibit E
-------
FORM OF SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
___________, _____ between _______________________, a ____________ corporation
(the "New Subsidiary Guarantor"), a subsidiary of ▇▇▇▇▇▇ Holdings, Inc., a
Delaware corporation (the "Company"), and U.S. Trust Company of Texas, N.A., as
trustee under the indenture referred to below (the "Trustee"). Capitalized
terms used herein and not defined herein shall have the meaning ascribed to them
in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (as amended or supplemented from time to time, the "Indenture"),
dated as of June 27, 1997, providing for the issuance of an aggregate principal
amount of $115,000,000 of 11% Senior Notes due 2007 (the "Senior Notes");
WHEREAS, Section 10.05 of the Indenture provides that under certain
circumstances the Company may cause, and Sections 4.17, 5.01 and 10.03 of the
Indenture provide that under certain circumstances the Company must cause,
certain of its subsidiaries to execute and deliver to the Trustee a supplemental
indenture pursuant to which such subsidiaries shall unconditionally guarantee
all of the Company's Obligations under the Senior Notes pursuant to a Subsidiary
Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The New Subsidiary Guarantor hereby
guarantees, jointly and severally with all other Subsidiary Guarantors, the
Company's Obligations under the Senior Notes and the Indenture on the terms and
subject to the conditions set forth in Article 10 of the Indenture and agrees to
be bound by all other applicable provisions of the Indenture.
3. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, shareholder or agent of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Senior Notes, any Subsidiary Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Senior Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Senior Notes.
EXHIBIT E - Page 1
4. New York Law to Govern. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. Counterparts The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the New Subsidiary
Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ________________ [Name of New Subsidiary Guarantor]
By:
--------------------------------------
Name:
Title:
Dated: ________________ U.S. Trust Company of Texas, N.A.,
as Trustee
By:
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Name:
Title:
EXHIBIT E - Page 2
