EXHIBIT 4.1
================================================================================
AMERICAN CELLULAR CORPORATION
Issuer,
and
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
Trustee
---------------------------
INDENTURE
Dated as of May 13, 1998
---------------------------
$285,000,000
10 1/2% Senior Notes due 2008
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
SECTION 1.1. Definitions..................................................1
SECTION 1.2. Incorporation by Reference of TIA...........................25
SECTION 1.3. Rules of Construction.......................................25
ARTICLE II THE SECURITIES...................................................26
SECTION 2.1. Form and Dating.............................................26
SECTION 2.2. Execution and Authentication................................26
SECTION 2.3. Registrar and Paying Agent..................................27
SECTION 2.4. Paying Agent to Hold Assets in Trust........................28
SECTION 2.5. Securityholder Lists........................................28
SECTION 2.6. [INTENTIONALLY OMITTED].....................................29
SECTION 2.7. REPLACEMENT SECURITIES......................................29
SECTION 2.8. OUTSTANDING SECURITIES......................................29
SECTION 2.9. TREASURY SECURITIES.........................................30
SECTION 2.10. TEMPORARY SECURITIES.......................................30
SECTION 2.11. CANCELLATION...............................................30
SECTION 2.12. DEFAULTED INTEREST.........................................30
SECTION 2.13. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE........32
SECTION 2.14. BOOK ENTRY PROVISIONS FOR GLOBAL SECURITIES................33
SECTION 2.15. SPECIAL TRANSFER AND EXCHANGE PROVISIONS...................35
SECTION 2.16. CUSIP NUMBERS..............................................39
ARTICLE III REDEMPTION......................................................39
SECTION 3.1. Rights of Redemption........................................39
SECTION 3.2. Notices to Trustee..........................................39
SECTION 3.3. Selection of Securities to Be Redeemed......................40
SECTION 3.4. Notice of Redemption........................................40
SECTION 3.5. Effect of Notice of Redemption..............................42
SECTION 3.6. Deposit of Redemption Price.................................42
SECTION 3.7. Securities Redeemed in Part.................................43
SECTION 3.8. Special Mandatory Redemption................................43
ARTICLE IV COVENANTS........................................................44
SECTION 4.1. Payment of Securities.......................................44
SECTION 4.2. Maintenance of Office or Agency.............................44
SECTION 4.3. Limitation on Restricted Payments...........................44
SECTION 4.4. Corporate Existence.........................................46
SECTION 4.5. Payment of Taxes and Other Claims...........................46
SECTION 4.6. Maintenance of Properties and Insurance.....................47
SECTION 4.7. Compliance Certificate; Notice of Default...................48
SECTION 4.8. Provision of Financial Statements...........................48
-i-
SECTION 4.9. [INTENTIONALLY OMITTED].....................................49
SECTION 4.10. Limitation on Transactions with Related Persons............49
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness........50
SECTION 4.12. Limitations on Restricting Subsidiary Dividends............53
SECTION 4.13. Limitations on Liens.......................................54
SECTION 4.14. Limitation on Asset Sales and Sales of Subsidiary Stock....55
SECTION 4.15. Waiver of Stay, Extension or Usury Laws....................60
SECTION 4.16. INTENTIONALLY OMITTED......................................61
SECTION 4.17. INTENTIONALLY OMITTED......................................61
SECTION 4.18. Limitation on Lines of Business............................61
SECTION 4.19. Restriction on Sale and Issuance of Subsidiary Stock.......61
SECTION 4.20. Limitation on Issuances of Guarantee of Indebtedness.......61
ARTICLE V SUCCESSOR CORPORATION.............................................62
SECTION 5.1. Limitation on Merger, Sale or Consolidation.................62
SECTION 5.2. Successor Corporation Substituted...........................63
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES...................................63
SECTION 6.1. Events of Default...........................................63
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment.....66
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................67
SECTION 6.4. Trustee May File Proofs of Claim............................68
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities.68
SECTION 6.6. Priorities..................................................69
SECTION 6.7. Limitation on Suits.........................................69
SECTION 6.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................70
SECTION 6.9. Rights and Remedies Cumulative..............................70
SECTION 6.10. Delay or Omission Not Waiver...............................70
SECTION 6.11. Control by Holders.........................................71
SECTION 6.12. Waiver of Past Default.....................................71
SECTION 6.13. Undertaking for Costs......................................71
SECTION 6.14. Restoration of Rights and Remedies.........................72
ARTICLE VII TRUSTEE.........................................................72
SECTION 7.1. Duties of Trustee...........................................72
SECTION 7.2. Rights of Trustee...........................................73
SECTION 7.3. Individual Rights of Trustee................................75
SECTION 7.4. Trustee's Disclaimer........................................75
SECTION 7.5. Notice of Default...........................................75
SECTION 7.6. Reports by Trustee to Holders...............................75
SECTION 7.7. Compensation and Indemnity..................................76
SECTION 7.8. Replacement of Trustee......................................77
SECTION 7.9. Successor Trustee by Merger, Etc............................78
-ii-
SECTION 7.10. Eligibility; Disqualification..............................78
SECTION 7.11. Preferential Collection of Claims against Company..........78
SECTION 7.12. Wire Transfers and Investments.............................78
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................79
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance....79
SECTION 8.2. Legal Defeasance and Discharge..............................79
SECTION 8.3. Covenant Defeasance.........................................80
SECTION 8.4. Conditions to Legal or Covenant Defeasance..................80
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities
to be Held in Trust; Other Miscellaneous Provisions.........82
SECTION 8.6. Repayment to the Company....................................82
SECTION 8.7. Reinstatement...............................................82
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................83
SECTION 9.1. Supplemental Indentures Without Consent of Holders..........83
SECTION 9.2. Amendments, Supplemental Indentures and Waivers
with Consent of Holders.....................................84
SECTION 9.3. Compliance with TIA.........................................85
SECTION 9.4. Revocation and Effect of Consents...........................85
SECTION 9.5. Notation on or Exchange of Securities.......................86
SECTION 9.6. Trustee to Sign Amendments, Etc.............................87
ARTICLE X...................................................................87
SECTION 10.1. Security....................................................87
ARTICLE XI RIGHT TO REQUIRE REPURCHASE......................................89
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon
a Change of Control........................................89
ARTICLE XII [RESERVED]......................................................91
ARTICLE XIII MISCELLANEOUS..................................................91
SECTION 13.1. TIA Controls...............................................91
SECTION 13.2. Notices....................................................91
SECTION 13.3. Communications by Holders with Other Holders...............92
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.........92
SECTION 13.5. Statements Required in Certificate or Opinion..............93
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar..................93
SECTION 13.7. Legal Holidays.............................................93
SECTION 13.8. Governing Law..............................................94
SECTION 13.9. No Adverse Interpretation of Other Agreements..............94
SECTION 13.10. No Recourse against Others................................94
SECTION 13.11. Successors................................................95
SECTION 13.12. Duplicate Originals.......................................95
SECTION 13.13. Severability..............................................95
SECTION 13.14. Table of Contents, Headings, Etc..........................95
SECTION 13.15. Qualification of Indenture................................95
- iii -
SECTION 13.16. Registration Rights........................................96
SIGNATURES...................................................................97
EXHIBIT A - FORM OF SECURITY................................................A-1
EXHIBIT B - REGULATION S CERTIFICATE........................................B-1
EXHIBIT C - RESTRICTED SECURITIES CERTIFICATE...............................C-1
EXHIBIT D - UNRESTRICTED SECURITIES CERTIFICAT..............................D-1
EXHIBIT E - TELEPHONE NUMBER(S) FOR CALL-BACKS..............................E-1
- iv -
INDENTURE, dated as of May 13, 1998, by and between American Cellular
Corporation, a Delaware corporation (the "Company"), and Chase Manhattan Bank
and Trust Company, National Association , a banking corporation organized under
the laws of the United States of America, as Trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's
10 1/2% Series A Senior Notes due 2008 (the "Series A Securities" or the
"Initial Securities"), and the 10 1/2% Series B Senior Notes due 2008 (the
"Series B Securities" and, together with the Series A Securities, the
"Securities"), which may be exchanged for the 10 1/2% Series A Senior Notes due
2008:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
-----------
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Acquired Indebtedness" means Indebtedness of a person (i) existing at
the time such person becomes a Restricted Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, as the case may be.
Acquired Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the Acquired Person becomes a
Restricted Subsidiary, as the case may be.
"Acquired Person" shall have the meaning as set forth in the
definition of "Permitted Investment."
"Additional Escrow Amount" means that certain equity contribution from
the Equity Investors, in the amount of $20 million, which is placed in the
Escrow and Pledge Account with the net proceeds realized from the sale of the
Notes.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means (a) the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the
ownership of voting securities, by contract, or otherwise, or (b) without
limiting the foregoing, the beneficial ownership of 10% or more of the voting
power of the voting common equity of such Person (on a fully diluted basis) or
of warrants or other rights to acquire such equity (whether or not presently
exercisable).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Annualized Operating Cash Flow" on any date means, with respect to
any Person, the Operating Cash Flow for the Reference Period multiplied by two.
"Annualized Operating Cash Flow Ratio" on any date (the "Transaction
Date") means, with respect to any Person and its Subsidiaries, the ratio of (i)
consolidated Indebtedness of such Person and its Subsidiaries on the Transaction
Date (after giving pro forma effect to the Incurrence of such Indebtedness) (and
without duplication of any Indebtedness that may be the obligation of such
Person and/or one of its Subsidiaries) divided by (ii) the aggregate amount of
Annualized Operating Cash Flow of such Person (determined on a pro forma basis
after giving effect to all acquisitions or dispositions of businesses made by
such Person and its Subsidiaries from the beginning of the Reference Period
through the Transaction Date as if such acquisition or disposition had occurred
at the beginning of such Reference Period); provided that for purposes of such
computation, in calculating Annualized Operating Cash Flow and consolidated
Indebtedness, (a) the transaction giving rise to the need to calculate the
Annualized Operating Cash Flow Ratio will be assumed to have occurred (on a pro
forma basis) on the first day of the Reference Period; (b) the incurrence of any
Indebtedness during the Reference Period or subsequent thereto and on or prior
to the Transaction Date (and the application of the proceeds therefrom to the
extent used to retire Indebtedness or to acquire businesses) will be assumed to
have occurred (on a pro forma basis) on the first day of such Reference Period;
(c) Consolidated Interest Expense attributable to any Indebtedness (whether
existing or being incurred) bearing a floating interest rate shall be computed
as if the rate in effect on the Transaction Date had been the applicable rate
for the entire period; and (d) all members of the consolidated group of such
Person on the Transaction Date that were acquired during the Reference Period
shall be deemed to be members of the consolidated group of such Person for the
entire Reference Period. When the foregoing definition is used in connection
with the Company and its Restricted Subsidiaries, references to a Person and its
Subsidiaries in the foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case
- 2 -
to the extent applicable to such transaction and as in effect at the time of
such transfer or transaction.
"Asset Sale" shall have the meaning specified in Section 4.14.
"Asset Sale Amount" shall have the meaning specified in Section 4.14.
"Asset Sale Offer" shall have the meaning specified in Section 4.14.
"Asset Sale Offer Amount" shall have the meaning specified in Section
4.14.
"Asset Sale Offer Price" shall have the meaning specified in Section
4.14.
"Asset Sale Purchase Date" shall have the meaning specified in Section
4.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligations shall
be the capitalized amount of such obligations, as determined in accordance with
GAAP.
"Capital Stock" means, with respect to any Person, any capital stock
of such Person and shares, interests, participations or other ownership
interests (however designated) of any Person and any rights (other than debt
securities convertible into capital stock), warrants and options to purchase any
of the foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation and each general
and limited partnership interest of such Person if such Person is a partnership.
- 3 -
"Cash Equivalents" means (i) Securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (iii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) and (ii) above, including funds for which the Trustee,
its parent holding company or any affiliate or subsidiary of the Trustee or such
holding company provide investment advisory or other management services.
"Change of Control" means (i) any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the assets of the
Company, on a consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction, any
"person" or "group" (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable), other than an Excluded
Person or Excluded Group, is or becomes the "beneficial owner" (as such term is
used in Rule 13d-3 promulgated pursuant to the Exchange Act), directly or
indirectly, of Voting Stock representing more than 50% of the voting power of
the Voting Stock of the transferee, (ii) any "person" or "group" (as such terms
are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether
or not applicable), other than an Excluded Person or Excluded Group, is or
becomes the "beneficial owner" (as such term is used in Rule 13d-3 promulgated
pursuant to the Exchange Act), directly or indirectly, of Voting Stock
representing more than 50% of the voting power of the Voting Stock of the
Company then outstanding normally entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months after the Issue Date,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the Excluded Persons
or any Excluded Group or the shareholders of the Company was approved by a vote
of a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Change of Control Offer" shall have the meaning specified in Section
11.1.
- 4 -
"Change of Control Offer Period" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Date" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Price" shall have the meaning specified in
Section 11.1.
"Closing Price" on any Trading Day with respect to the per share price
of any shares of Capital Stock means the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if such shares of Capital Stock are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on Nasdaq
National Market or, if such shares are not listed or admitted to trading on any
national securities exchange or quoted on Nasdaq National Market but the issuer
is a Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act) and the
principal securities exchange on which such shares are listed or admitted to
trading is a Designated Offshore Securities Market (as defined in Rule 902(a)
under the Securities Act), the average of the reported closing bid and asked
prices regular way on such principal exchange, or, if such shares are not listed
or admitted to trading on any national securities exchange or quoted on Nasdaq
National Market and the issuer and principal securities exchange do not meet
such requirements, the average of the closing bid and asked prices in the over-
the-counter market as furnished by any New York Stock Exchange member firm is
selected from time to time by the Issuer for that purpose and is reasonably
acceptable to the Trustee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture, and thereafter means such
successor.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
President, its Chief Executive Officer, its Chief Financial Officer or a Vice
President (regardless of Vice Presidential designation), and any one of its
Treasurer, or Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
- 5 -
"Consolidated Interest Expense" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to the Capitalized Lease Obligations) of such
Person and its consolidated Subsidiaries during such period, including (i)
original issue discount and non-cash interest payments or accruals on any
Indebtedness, (ii) the interest portion of all deferred payment obligations, and
(iii) all commissions, discounts and other fees and charges owed with respect to
bankers' acceptances and letters of credit financings and currency and Interest
Rate Protection Agreements, in each case to the extent attributable to such
period, and (b) the amount of cash dividends accrued or payable by such Person
or any of its consolidated Restricted Subsidiaries in respect of Preferred Stock
(other than by Restricted Subsidiaries of such Person to such Person or such
Person's Wholly Owned Subsidiaries). For purposes of this definition, (x)
interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Company to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP and (y)
interest expense attributable to any Indebtedness represented by the guaranty by
such Person or a Subsidiary of such Person of an obligation of another Person
shall be deemed to be the interest expense attributable to the Indebtedness
guaranteed. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its consolidated Subsidiaries for such
period, determined (on a consolidated basis) in accordance with GAAP, adjusted
to exclude (only to the extent included in computing such net income (or loss)
and without duplication) (i) all extraordinary gains or losses and all gains and
losses from the sales or other dispositions of assets out of the ordinary course
of business (net of taxes, fees and expenses relating to the transaction giving
rise thereto) for such period), (ii) the net income, if positive, of any Person,
that is not a Subsidiary in which such Person or any of its Subsidiaries has an
interest, except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person that both (x) are
actually paid in cash to such Person or a Subsidiary of such Person during such
period and (y) when taken together with all other dividends and distributions
paid during such period in cash to such Person or a Subsidiary of such Person,
are not in excess of such Person's pro rata share of such other Person's
aggregate net income earned during such period, (iii) except as provided in the
definition of "Annualized Operating Cash Flow Ratio," the net income (or loss)
of any Subsidiary acquired in a pooling of interests transaction for any period
prior to the date of such acquisition, (iv) for purposes of Section 4.3,
- 6 -
the net income, if positive, of any Subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions is not at the
time permitted by operation of the terms of its charter or any agreement or
instrument applicable to such Subsidiary, and (v) the cumulative effect of a
change in accounting principles. When the foregoing definition is used in
connection with the Company and its Restricted Subsidiaries, references to a
Person and its Subsidiaries in the foregoing definition shall be deemed to refer
to the Company and its Restricted Subsidiaries.
"Convertible Notes" means the 10 3/4% Senior Subordinated Convertible
Discount Notes due 2004 of PriCellular.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which address as of the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and, for the purposes required for
Section 4.2 hereunder, ▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Water Street, Room ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Covenant Defeasance" shall have the meaning specified in Section 8.3.
"Credit Facility" means, that certain Credit Facility to be entered
into among a Restricted Subsidiary of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, Toronto Dominion (Texas), Inc., and the other financial
institutions a party thereto, as such agreement in whole or in part, may be, in
one or more agreements with one or more bank lending groups, amended, renewed,
extended, substituted, refinanced, restructured, replaced, supplemented or
otherwise modified, in whole or in part, from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications of the
foregoing) to which the Issuer or any Restricted Subsidiary is a party including
to increase the commitments thereunder or to add or eliminate borrowers or
guarantors thereunder.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
- 7 -
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information called
for by footnotes 1 and 3 thereof.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means, with respect to any Person,
Capital Stock of such Person that, by its terms or by the terms of any security
into which it is convertible, exercisable or exchangeable, is, or upon the
happening of any event or the passage of time would be, required to be redeemed
or repurchased (including at the option of the holder thereof) by such Person or
any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity
of the Securities; provided that (a) Capital Stock will not be deemed to be
Disqualified Capital Stock if it may only be so redeemed or repurchased solely
in consideration of Qualified Capital Stock of the Issuer and (b) any Capital
Stock that would not constitute Disqualified Capital Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Securities shall not
constitute Disqualified Capital Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.14 and 11.1
hereof and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Securities as are required to be repurchased
pursuant to the provisions contained in Sections 4.14 and 11.1 hereof.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-3" or higher, "A" or higher or "A-" or
higher according to ▇▇▇▇▇'▇ Investor Service, Inc., Standard & Poor's Ratings
Group or Duff & ▇▇▇▇▇▇ Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act)) respectively, at the time as of which any
investment or rollover therein is made.
"Equity Investors" means collectively, Spectrum Equity Investors II,
L.P., Providence Equity Partners, L.P. and the other Persons listed as
"Principal Stockholders" in the Offering Memorandum.
- 8 -
"Escrow and Pledge Account" means an account established with the
Trustee pursuant to the terms of the Pledge and Escrow Agreement for the deposit
of the net proceeds realized from the sale of the Notes, together with the
Additional Escrow Amount; and after the Merger such account will hold the
Pledged Securities purchased by the Issuer with a portion of the net proceeds
from the Offering.
"Escrow Funds" means the net proceeds of the Offering and an equity
contribution from the Equity Investors of $20.0 million, all held in the Escrow
and Pledge Account pursuant to the Pledge and Escrow Agreement.
"Event of Default" shall have the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2.1 of the
Registration Rights Agreement.
"Exchange Securities" means the 10 1/2% Series B Senior Notes due 2008
to be issued pursuant to this Indenture in connection with the offer to exchange
Exchange Securities for the Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"Excluded Group" means a "group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) that includes one or more Excluded Persons;
provided that the voting power of the Capital Stock of the Company "beneficially
owned" (as such term is used in Rule 13d-3 promulgated under the Exchange Act)
by such Excluded Persons (without attribution to such Excluded Persons of the
ownership by other members of the "group") represents a majority of the voting
power of the Capital Stock "beneficially owned" (as such term is used in Rule
13d-3 promulgated under the Exchange Act) by such group.
"Excluded Person" means Spectrum Equity Investors, Providence Equity
Partners and MLC Industries, Inc. and any Affiliate of any of the foregoing that
is directly or indirectly controlling or controlled by, or under direct or
indirect common control with, any of the foregoing.
"Final Put Date" shall have the meaning specified in Section 4.14.
"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
- 9 -
pronouncements of the Financial Accounting Standards Board ("FASB") or, if FASB
ceases to exist, any successor thereto; provided, however, that for purposes of
determining compliance with covenants in the Indenture, "GAAP" means such
generally accepted accounting principles as in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Security attached hereto as Exhibit A.
"Government Securities" means non-callable direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged and which have a remaining weighted average life to maturity of not more
than the date of the interest payment as to which such Investment in the
Government Security is intended to pay.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered. The Holder of a Security will be treated as the owner of such
Security for all purposes.
"Incur" shall have the meaning specified in Section 4.11.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Rate Protection Agreements;
(c) all liabilities of others of the kind described in the preceding clauses (a)
or (b) that such Person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such Person and all
obligations to purchase, redeem or acquire any Capital Stock; (d) all
Disqualified Capital Stock of such Person and all Preferred Stock of such
Person's Restricted Subsidiaries and (e) any and all deferrals, renewals,
extensions, refinancing and
- 10 -
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c), (d) or this clause (e), whether or not between or among
the same parties; provided that the outstanding principal amount at any date of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such date.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchasers" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, TD Securities (USA) Inc., and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc.
"Initial Securities" means the 10 1/2% Series A Senior Notes due 2008,
as supplemented from time to time in accordance with the terms hereof, issued
pursuant to this Indenture.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to any
Person, the Obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates. For purposes of this Indenture, the amount of such
obligations shall be the amount determined in respect thereof as of the end of
the then most recently ended fiscal quarter of such Person, based on the
assumption that such obligation had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person
thereunder of if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligations shall be the net amount so determined, plus any premium due upon
default by such Person.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities of such other Person or any agreement to
make any such acquisition; (b) the making by such Person of any deposit with, or
advance, loan or other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person)
- 11 -
or any commitment to make any such advance, loan or extension; (c) the entering
into by such Person of any guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of such other Person; (d) the making
of any capital contribution by such Person to such other Person; and (e) the
designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.3, (i) "Investment" shall
include and be valued at the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the fair market value of such Investment plus the fair
market value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the fair market value of net assets in excess of
$5,000,000 shall be as determined by an independent appraiser of national
reputation.
"Issue Date" means the time and date of the first issuance of the
Securities under the Indenture.
"Junior Indebtedness" means Indebtedness of the Company that (i)
requires no payment of principal prior to or on the date on which all principal
of and interest on the Securities is paid in full and (ii) is subordinate and
junior in right of payment to the Securities in all respects.
"Legal Defeasance" shall have the meaning specified in Section 8.2.
"Legal Holiday" shall have the meaning specified in Section 13.7.
"Lien" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest and
any option or other agreement to give any security interest).
"Marketable U.S. Securities" means: (i) Government Securities; (ii)
any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an Affiliate of the Issuer) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to ▇▇▇▇▇'▇ Investors
Service, Inc., "A-1" or higher according to Standard & Poor's Ratings Group or
"A-1" or higher according to Duff & ▇▇▇▇▇▇ Credit Rating Co. (or such similar
equivalent rating by at least
- 12 -
one "nationally recognized statistical rating organization" (as defined in Rule
436 under the Securities Act)); (iv) any banker's acceptances or money market
deposit accounts issued or offered by an Eligible Institution; (v) repurchase
obligations with a term of not more than 7 days for Government Securities
entered into with an Eligible Institution; and (vi) any fund investing
exclusively in investments of the types described in clauses (i) through (v)
above, including funds for which the Trustee, its parent holding company or any
affiliate or subsidiary of the Trustee or such holding company provides
investment advisory or other management services.
"Maturity Date" means, when used with respect to any Security, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of the Indenture regarding
acceleration of Indebtedness or any Change of Control Offer, or Asset Sale
Offer).
"Merger" means the merger of American Cellular Corporation with and
into PriCellular Corporation, pursuant to the Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of March 6, 1998 between PriCellular Corporation and American Cellular
Corporation.
"Merger Date" means the date upon which the Merger is consummated.
"Minimum Accumulation Date" shall have the meaning specified in
Section 4.14.
"Net Cash Proceeds" means the aggregate amount of cash and Cash
Equivalents received by the Company and its Restricted Subsidiaries in respect
of an Asset Sale (including upon the conversion to cash and Cash Equivalents of
(A) any note or installment receivable at any time, or (B) any other property as
and when any cash and Cash Equivalents are received in respect of any property
received in an Asset Sale but only to the extent such cash and Cash Equivalents
are received within one year after such Asset Sale), less the sum of (i) all
reasonable out-of-pocket fees, commissions and other expenses incurred in
connection with such Asset Sale, including the amount (estimated in good faith
by the Board of Directors of the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any Restricted Subsidiary
of the Company in connection with such Asset Sale and (ii) the aggregate amount
of cash so received which is used to retire any existing Senior Indebtedness of
the Company or Indebtedness of its Restricted Subsidiaries, as the case may be,
which is required to be repaid in connection with such Asset Sale or is secured
by a Lien
- 13 -
on the property or assets of the Company or any of its Restricted Subsidiaries,
as the case may be.
"Net Proceeds" means the aggregate net proceeds (including the fair
market value of non-cash proceeds constituting equipment or other assets of a
type generally used in a Related Business an amount reasonably determined by the
Board of Directors of the Company for amounts under $5,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts incurred in connection therewith.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S under the Securities Act.
"Notice of Default" shall have the meaning specified in Section
6.1(3).
"Obligation" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Company in a
bankruptcy case under Federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"Offering" means the offering of the Securities by the Company.
"Offering Memorandum" means that certain Offering Memorandum of the
Company, dated May 6, 1998, relating to the original issuance and sale of the
Initial Securities to the Initial Purchasers.
"Officer" means, with respect to the Company, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of the Company, respectively, and otherwise complying with the requirements of
Sections 13.4 and 13.5.
"Old Notes" means the 10 3/4% Senior Notes due 2004 of PriCellular
Wireless Corporation ("Wireless"), the 12 1/4% Senior Subordinated Notes due
2003 of Wireless and the 14% Senior Subordinated Discount Notes due 2001 of
Wireless.
- 14 -
"Operating Cash Flow" of any Person means (a) with respect to any
period, the Consolidated Net Income of such Person for such period, plus (b) the
sum, without duplication (and only to the extent such amounts are deducted from
net revenues in determining such Consolidated Net Income), of (i) the provisions
for income taxes for such period for such Person and its consolidated
Subsidiaries, (ii) depreciation, amortization and other non-cash charges of such
Person and its consolidated Subsidiaries and (iii) Consolidated Interest Expense
of such Person for such period, determined, in each case, on a consolidated
basis for such Person and its consolidated Subsidiaries in accordance with GAAP,
less (c) the amount of all cash payments made during such period by such Person
and its Subsidiaries to the extent such payments relate to non-cash charges that
were added back in determining Operating Cash Flow for such period or for any
prior period. When the foregoing definition is used in connection with the
Company and its Restricted Subsidiaries, references to a Person and its
Subsidiaries in the foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.4 and 13.5.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permitted Investment" means (i) Investments in Cash Equivalents; (ii)
Investments in the Company or a Restricted Subsidiary; (iii) Investments in a
Person substantially all of whose assets are of a type generally used in a
Related Business (an "Acquired Person") if, as a result of such Investments, (A)
the Acquired Person immediately thereupon becomes a Restricted Subsidiary or (B)
the Acquired Person immediately thereupon either (1) is merged or consolidated
with or into the Company or any of its Restricted Subsidiaries and the surviving
Person is the Company or a Restricted Subsidiary or (2) transfers or conveys all
or substantially all of its assets to, or is liquidated into, the Company or any
of its Restricted Subsidiaries; (iv) Investments in accounts and notes
receivable acquired in the ordinary course of business; (v) any securities
received in connection with an Asset Sale and any Investment with the Net Cash
Proceeds from any Asset Sale in Capital Stock of a Person, all or substantially
all of whose assets are of a type used in a Related Business, that complies with
Section 4.14; (vi) any guarantee issued by a Restricted Subsidiary incurred in
compliance with the Indenture; (vii) advances and prepayments for asset
purchases in the ordinary course of business in a Related Business of the
Company or a Restricted Subsidiary; (viii) loans made to certain officers upon
the Merger Date, the term of which will not exceed one year and the aggregate
outstanding balance of which will not exceed $2.0 million; (ix) customary loans
or advances made in the ordinary course of business to officers, directors or
employees of the Company or any of its Restricted
- 15 -
Subsidiaries for travel, entertainment, and moving and other relocation
expenses; (x) Investments in Permitted Joint Ventures which in the aggregate at
any one time outstanding do not exceed $15.0 million; and (xi) Investments which
in the aggregate at any one time outstanding do not exceed $5.0 million;
provided, however, such Investments may be increased to $10.0 million in the
aggregate provided that Wireless' Annualized Operating Cash Flow Ratio, after
giving effect to such Investments, would have been less than 6.25 to 1.00.
"Permitted Joint Venture" means, as applied to any Person, any other
Person (a) engaged in a Related Business, (b) over which such Person is
responsible (either directly or through a services agreement) for day-to-day
operations or otherwise has operational and managerial control or (c) of which
more than forty percent (40%) of the outstanding Voting Stock (other than
directors' qualifying shares) in the case of a corporation, or more than forty
percent (40%) of the outstanding ownership interests, in the case of an entity
other than a corporation, is at the time owned directly or indirectly by such
Person.
"Permitted Lien" means (a) Liens existing on the Issue Date; (b) Liens
imposed by governmental authorities for taxes, assessments or other charges not
yet subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or
other like Liens arising by operation of law in the ordinary course of business,
provided that (i) the underlying obligations are not overdue for a period of
more than 30 days, and (ii) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (d) Liens
securing the performance of bids, trade contracts (other than borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning, similar restrictions and other similar
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property, subject thereto (as such
property is used by the Company or any of its Restricted Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (f) Liens arising by operation of law in connection
with judgments, only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (h) Liens
in favor of the Trustee arising under the Indenture; (i) Liens securing the
Credit Facility; (j) Liens securing Indebtedness of a Person existing at the
time such Person becomes a Restricted
-16 -
Subsidiary or is merged with or into the Company or a Restricted Subsidiary,
provided that such Liens were in existence prior to the date of such
acquisition, merger or consolidation, were not incurred in anticipation thereof,
and do not extend to any other assets; (k) Liens arising from Purchase Money
Indebtedness permitted under the Indenture; (l) Liens securing Refinancing
Indebtedness Incurred to refinance any Indebtedness that was previously so
secured in a manner no more adverse to the Holders of the Securities than the
terms of the Liens securing such refinanced Indebtedness; (m) Liens securing
Indebtedness (including Capital Lease Obligations) permitted by clause (vi) of
Section 4.11; and (n) Liens in favor of the Company or a Wholly Owned Restricted
Subsidiary.
"Person" means any corporation, individual, joint stock company, joint
venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
"Pledge and Escrow Agreement" means the Pledge and Escrow Agreement,
dated as of the date of the Indenture, between the Company and the Trustee.
"Pledged Securities" means the securities purchased by the Company
with a portion of the net proceeds from the Offering to be deposited in the
Escrow and Pledge Account.
"Preferred Stock" means Capital Stock, other than common stock of an
issuer having no preferences or privileges as to the payment of dividends or the
distribution of the issuer's assets over any other class of such issuer's
Capital Stock.
"PriCellular" means PriCellular Corporation, a Delaware corporation.
"PriCellular Class A Shares" means shares of Class A Common Stock, par
value $0.01 per share, of PriCellular.
"PriCellular Class B Shares" means shares of Class B Common Stock, par
value $0.01 per share, of PriCellular.
"PriCellular Class A Preferred Stock" means shares of Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, of
PriCellular.
"Principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, applicable premium, if any, on such
Indebtedness.
- 17 -
"Private Placement Legend" means the legend set forth on the face of
the form of Security attached hereto as Exhibit A.
"Property" means any right or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Public Equity Offering" means an offer and sale of common stock
(which is Qualified Capital Stock) of the Company, with aggregate proceeds of at
least $50 million pursuant to a registration statement that has been declared
effective by the Commission pursuant to the Securities Act (other than a
registration statement on Form ▇-▇, ▇-▇ or otherwise relating to equity
securities issuable under any employee benefit plan of such corporate entity).
"Purchase Agreement" means that certain Purchase Agreement dated May
6, 1998 by and among the Company and the Initial Purchasers, as such agreement
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Purchase Money Indebtedness" means Indebtedness of the Company or its
Restricted Subsidiaries Incurred in connection with the purchase of property or
assets for the business of the Company or its Restricted Subsidiaries, provided
that the recourse of the lenders with respect to such Indebtedness is limited
solely to the property or assets so purchased without further recourse to either
the Company or any of its Restricted Subsidiaries.
"Qualified Capital Stock" means any Capital Stock of a Person that is
not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Securities whether
or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture, which shall include, without
duplication, in each case, any accrued and unpaid interest to the Redemption
Date.
"Reference Period" with regard to any Person means the last two full
fiscal quarters of such Person for which financial information (which the
Company shall use its best efforts to compile in a timely manner) in respect
thereof is
- 18 -
available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or the
Indenture.
"Refinancing Indebtedness" means any Indebtedness of the Issuer 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 Issuer or such Restricted Subsidiary (other than
intercompany Indebtedness); provided that: (i) the principal amount (or
accreted value, if applicable) of such Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable) plus accrued interest
on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life equal to or
greater than the Weighted Average Life 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 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 Issuer or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated May 13, 1998 by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act, as amended
from time to time.
"Regulation S Global Securities" means one or more permanent global
Securities in registered form representing the aggregate principal amount of
Securities sold in reliance on Regulation S under the Securities Act.
"Related Business" means any business related to, or complementary to,
the ownership, development, operation, or acquisition of wireless communications
systems as determined by the Board of Directors of the Company.
- 19 -
"Related Person" means, with respect to any Person, (i) any Affiliate
of such Person or any spouse, immediate family member, or other relative who has
the same principal residence of any Affiliate of such Person and (ii) any trust
in which any Person described in clause (i) above, has a beneficial interest.
"Restricted Partnership" shall have the meaning specified in Section
4.19.
"Restricted Payment" means, with respect to any Person, (i) any
dividend or other distribution on shares of Capital Stock of such Person or any
Subsidiary of such Person, (ii) any payment on account of the purchase,
redemption or other acquisition or retirement for value, or any payment in
respect of any amendment (in anticipation of or in connection with any such
retirement, acquisition or defeasance) in whole or in part, of any shares of
Capital Stock of such Person or any Subsidiary of such Person held by Persons
other than such Person or any of its Restricted Subsidiaries, (iii) any
defeasance, redemption, repurchase or other acquisition or retirement for value,
or any payment in respect of any amendment (in anticipation of or in connection
with any such retirement, acquisition or defeasance) in whole or in part, of any
Indebtedness of the Company (other than the scheduled repayment thereof at
maturity and any mandatory redemption or mandatory repurchase thereof pursuant
to the terms thereof) by such Person or a Subsidiary of such Person that is
subordinate in right of payment to the Securities (other than in exchange for
Refinancing Indebtedness permitted to be Incurred under the Indenture and except
for any such defeasance, redemption, repurchase, other acquisition or payment in
respect of Indebtedness held by any Restricted Subsidiary) and (iv) any
Investment (other than a Permitted Investment); provided, however, that the term
"Restricted Payment" does not include (i) any dividend, distribution or other
payment on shares of Capital Stock of the Company or any Restricted Subsidiary
solely in shares of Qualified Capital Stock, (ii) any dividend, distribution or
other payment to the Company, or any dividend to any of its Restricted
Subsidiaries, by any of its Subsidiaries, (iii) any dividend, distribution or
other payment by any Restricted Subsidiary on shares of its Capital Stock that
is paid pro rata to all holders of such Capital Stock, and (iv) the purchase,
redemption or other acquisition or retirement for value of shares of Capital
Stock of any Restricted Subsidiary held by Persons other than the Company or any
of its Restricted Subsidiaries.
"Restricted Period" means the period through and including the 40/th/
day after the later of the commencement of the Offering and the original issue
date of the Securities.
"Restricted Security" means a Security, unless or until it has been
(i) disposed of in a transaction effectively registered under the Securities Act
or (ii)
- 20 -
distributed to the public pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act; provided that in no case shall an Exchange
Security issued in accordance with this Indenture and the terms and provisions
of the Registration Rights Agreement be a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company which at
the time of determination is not an Unrestricted Subsidiary. The Board of
Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if, immediately before and after giving effect to
such designation, there would exist no Default or Event of Default and the
Company could incur at least $1.00 of Indebtedness pursuant to the Annualized
Operating Cash Flow Ratio test of Section 4.11, on a pro forma basis, taking
into account such designation.
"Rule 144A" means Rule 144A under the Securities Act, as amended from
time to time.
"Rule 144A Global Securities" means one or more permanent Global
Securities in registered form representing the aggregate principal amount of
Securities sold in reliance on Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities and, when and
if issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all Indebtedness of the Company
(including, with respect to the Credit Facility, all Obligations) including
interest thereon, whether outstanding on the Issue Date or thereafter issued,
other than (a) Indebtedness that is expressly subordinated or junior in right of
payment to any Indebtedness of the Company, (b) Indebtedness represented by
Disqualified Capital Stock, (c) any liability for federal, state, local or other
taxes owed or owing by the Company, (d) Indebtedness of the Company to any
Subsidiary of the Company or any Affiliate of the Company, (e) trade payables
and (f) Indebtedness incurred in violation of the Indenture.
- 21 -
"Series B Global Securities" means one or more permanent Global
Securities in registered form representing the aggregate principal amount of
Series B Securities exchanged for Series A Securities pursuant to the Exchange
Offer.
"Significant Restricted Subsidiary" means one or more Restricted
Subsidiaries having an aggregate net book value of assets in excess of 5% of the
net book value of the assets of the Company and its Restricted Subsidiaries on a
consolidated basis.
"Special Record Date" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Special Redemption Price" has the meaning set forth in Section 3.8.
"Special Rights" shall have the meaning specified in Section 4.19.
"Stated Maturity" means the date fixed for the payment of any
principal or premium pursuant to the Indenture and the Securities, including the
Maturity Date, upon redemption, acceleration, Asset Sale Offer, Change of
Control Offer or otherwise.
"Strategic Equity Investor" means any Person which is (or a controlled
Affiliate of any Person which is) engaged in the ownership, development,
operation or acquisition of communications systems and which, as of the last
available annual or quarterly financial statements, has Total Common Equity of
at least $1.0 billion.
"Strategic Equity Offering" means an offer or sale of common stock or
Preferred Stock (other than Disqualified Capital Stock) of the Company, with
aggregate proceeds of at least $50.0 million to a Strategic Equity Investor
other than in connection with or after the occurrence of a Change of Control.
"Subsidiary" with respect to any Person, means (i) a corporation at
least fifty percent of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any Person in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has (x) at least a
fifty percent ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
- 22 -
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.15 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of the execution of this Indenture.
"Total Common Equity" of any Person means, as of any date of
determination the product of (i) the aggregate number of outstanding primary
shares of common stock of such Person on such day (which shall not include any
options or warrants on, or securities convertible or exchangeable into, shares
of common stock of such Person) and (ii) the average Closing Price of such
common stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (ii) of the preceding sentence
shall be determined by the Board of Directors of the Issuer in good faith and
evidenced by a resolution of the Board of Directors filed with the Trustee.
"Trading Day," with respect to a securities exchange or automated
quotation system, means a day on which such exchange or system is open for a
full day of trading.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth on the face of the form of Security
attached hereto as Exhibit A.
"Trust Officer" means any officer within the corporate trust division
(or any successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at that time shall be such officers assigned and duly authorized by the Trustee
to administer its corporate trust matters hereunder, and also means, with
respect to a particular corporate trust matter hereunder, any other officer of
the Trustee to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Company
that, at the time of determination, shall be an Unrestricted Subsidiary (as
- 23 -
designated by the Board of Directors of the Company, as provided below). The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary at or prior to the time
it is so formed or acquired) to be an Unrestricted Subsidiary if (a) no Default
or Event of Default is existing or will occur as a consequence thereof, (b) such
Subsidiary does not own any Capital Stock of, or own or hold any Lien on any
property or asset of, the Company or any Restricted Subsidiary that is not a
Subsidiary of the Subsidiary to be so designated and (c) such Subsidiary and
each of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee, or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any property or assets of the Company or any of its
Restricted Subsidiaries (except that such Subsidiary and its Subsidiaries may
guarantee the Securities); provided that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, that such designation would be permitted under
Section 4.3. Each such designation shall be evidenced by filing with the
Trustee a certified copy of the resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Legal Tender Equivalents" means securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof with a maturity of 90 days or less (provided that the
full faith and credit of the United States of America is pledged in support
thereof).
"Voting Stock" means Capital Stock of the Company having generally the
right to vote in the election of a majority of the directors of the Company or
having generally the right to vote with respect to the organizational matters of
the Company.
"Weighted Average Life" 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" means, with respect to a Subsidiary of the Company, (i)
a Subsidiary that is a corporation, of which not less than 99% of the Capital
Stock (except for directors' qualifying shares or certain minority interests
owned by other Persons solely due to local law requirements that there be more
than one stockholder, but which interest is not in excess of what is required
for
- 24 -
such purpose) is owned directly by such Person or through one or more other
Wholly Owned Subsidiaries of such Person, or (ii) any entity other than a
corporation in which such Person, directly or indirectly, owns not less than 99%
of the Capital Stock of such entity.
SECTION 1.2. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. Rules of Construction.
---------------------
Unless the context otherwise requires:
(l) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
- 25 -
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to Sections or Articles means reference to such Section
or Article in this Indenture, unless stated otherwise; and
(8) whenever in this Indenture or the Securities it is provided that
the principal amount with respect to a Security shall be paid, such provision
shall be deemed to require (whether or not so expressly stated) the simultaneous
payment of any accrued and unpaid interest to the date of payment on such
Security payable pursuant to paragraph 1 of the Securities.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication in
respect thereof shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.2. Execution and Authentication.
----------------------------
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
- 26 -
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Initial Securities for original issue
in the aggregate principal amount of up to $285,000,000 and shall authenticate
Exchange Securities for original issue in the aggregate principal amount of up
to $285,000,000, in each case upon a written order of the Company in the form of
an Officers' Certificate; provided that such Exchange Securities shall be
issuable only upon the valid surrender for cancellation of Initial Securities of
a like aggregate principal amount in accordance with the Registration Rights
Agreement. The Officers' Certificate shall specify the amount of Securities to
be authenticated and the date on which the Securities are to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed $285,000,000, except as provided in Section 2.7. Upon the written order
of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. Interest shall be
payable in the manner and at the times specified in the form of Securities
attached hereto.
SECTION 2.3. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent") and where notices
and demands to or upon the Company in respect of the Securities may be served.
The Company may act as Registrar or Paying Agent, except that, for the purposes
of Articles III, VIII, XI and Section 4.14 and as otherwise specified in this
Indenture,
- 27 -
neither the Company nor any Affiliate of the Company shall act as Paying Agent.
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional Paying Agents. The term "Paying Agent" includes any additional Paying
Agent. The Company hereby initially appoints the Trustee as Registrar and Paying
Agent, and the Trustee hereby agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, premium, if any, or interest on, the Securities (whether such
assets have been distributed to it by the Company or any other obligor on the
Securities), and shall promptly notify the Trustee in writing of any Default in
making any such payment. If either of the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate such assets and hold them as a separate
trust fund for the benefit of the Holders or the Trustee. The Company at any
time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent (if other than the Company) shall have no further
liability for such assets.
SECTION 2.5. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
- 28 -
Trustee on or before the third Business Day preceding 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 reasonably may require of the names and
addresses of Holders.
SECTION 2.6. [INTENTIONALLY OMITTED].
---------------------
SECTION 2.7. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims and submits an affidavit or other evidence, satisfactory to
the Trustee, to the Trustee to the effect that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee or the Company, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the Company and the
Trustee, to protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Company may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.8. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of a Company) holds cash sufficient to pay all
of the principal and interest due on the Securities payable on that date and
payment of the Securities called for redemption or payable on such Maturity Date
- 29 -
is not otherwise prohibited pursuant to this Indenture, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company or Affiliates of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that the Trustee knows are so owned shall be
disregarded.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company reasonably and in good faith considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel and, at the written direction of the Company, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.7, the Company may not issue new Securities to replace Securities
that have been paid or delivered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 2.12. Defaulted Interest.
------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more predecessor Securities) is registered
at the close of business on Record Date for such interest.
- 30 -
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of cash equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
cash when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security register not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security
- 31 -
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.13. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such other
office as the Trustee may designate, a register (the register maintained in such
office or in any other office or agency designated pursuant to Section 4.2 being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as the Security Registrar may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Trustee shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. The
Company may change the Security Registrar or appoint one or more co-Security
Registrars without notice.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 4.2, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series of any authorized denomination or denominations, of a like aggregate
principal amount.
Furthermore, any Holder of the Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in a Security shall be required to be reflected in a book
entry.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Series A Securities for Series B
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
- 32 -
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange, repurchase or redemption, shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, except for any tax or other
governmental charge that may be imposed in connection therewith, other than all
exchanges pursuant to Section 2.1, 2.2, 2.7, 2.10, 2.13, 3.7, 4.14, 9.5 or 11.1
not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 3.3 and ending at the close of business on the day
of such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
Every Security shall be subject to the restrictions on transfer
provided in the legend required to be set forth on the face of each Security as
indicated on the form of Security attached hereto as Exhibit A, and the
restrictions set forth in this Section 2.13, and the Holder of each Security, by
such Holder's acceptance thereof (or interest therein), agrees to be bound by
such restrictions on transfer.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section 2.13,
Section 2.7, 2.10, 3.7 or 9.5 or otherwise, shall also be a Global Security and
bear the legend indicated on the form of Security attached hereto as Exhibit A.
SECTION 2.14. Book Entry Provisions for Global Securities.
-------------------------------------------
(a) Each Global Security initially shall (i) be registered in the name
of the Depositary for such Global Security or the nominee of such Depositary,
(ii) be deposited with, or on behalf of, the Depositary or with the Trustee as
custodian for such Depositary and (iii) bear legends indicated on the form of
Security attached hereto as Exhibit A.
- 33 -
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Company fails to appoint a successor Depositary, (ii) the
Company, at its option, executes and delivers to the Trustee a Company Order
stating that it elects to cause the issuance of the Securities in certificated
form and that all Global Securities shall be exchanged in whole for Securities
that are not Global Securities (in which case such exchange shall be effected by
the Trustee) or (iii) there shall have occurred and be continuing an Event of
Default or any event which after notice or lapse of time or both would be an
Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Two. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Two or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to
- 34 -
this Section 2.14(c) and as otherwise provided in this Article Two, authenticate
and deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Two if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Two or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 2.15. Special Transfer and Exchange Provisions.
----------------------------------------
(a) Certain Transfers and Exchanges. Transfers and exchanges of
-------------------------------
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 2.15 shall be made only in accordance with this Section 2.15.
(i) Rule 144A Global Security to Regulation S Global Security.
---------------------------------------------------------
If the owner of a beneficial interest in the Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected only in
accordance with the provisions of this paragraph and paragraph (iv)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the
Depositary or its authorized representative directing that a
beneficial interest in the Regulation S Global Security in a
- 35 -
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Rule 144A Global
Security in an equal principal amount be debited from another
specified Agent Member's account and (b) a Regulation S Certificate in
the form of Exhibit B hereto, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the Rule 144A
Global Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar but subject to paragraph (iv) below,
shall reduce the principal amount of the Rule 144A Global Security and
increase the principal amount of the Regulation S Global Security by
such specified principal amount as provided in Section 2.14(c).
(ii) Regulation S Global Security to Rule 144A Global Security.
---------------------------------------------------------
If the owner of a beneficial interest in the Regulation S Global
Security wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
Rule 144A Global Security, such transfer may be effected only in
accordance with this paragraph (ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (a)
an order given by the Depositary or its authorized representative
directing that a beneficial interest in the Rule 144A Global Security
in a specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the Regulation S
Global Security in an equal principal amount be debited from another
specified Agent Member's account and (b) if such transfer is to occur
during the Restricted Period, a Restricted Securities Certificate in
the form of Exhibit C hereto, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the Regulation S
Global Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal amount of
the Regulation S Global Security and increase the principal amount of
the Rule 144A Global Security by such specified principal amount as
provided in Section 2.14(c).
(iii) Exchanges between Global Security and Non-Global Security.
---------------------------------------------------------
A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 2.15(b);
provided that, if such interest is a beneficial interest in the Rule
144A Global Security, or if such interest is a beneficial interest in
the Regulation S Global Security and such exchange is to occur during
the Restricted Period, then such interest shall bear the Private
Placement Legend (subject in each case to Section 2.15(b).
- 36 -
(iv) Regulation S Global Security to be Held Through Euroclear
---------------------------------------------------------
or Cedel during Restricted Period. The Company shall use its best
---------------------------------
efforts to cause the Depositary to ensure that, until the expiration
of the Restricted Period, beneficial interests in the Regulation S
Global Security may be held only in or through accounts maintained at
the Depositary by Euroclear or Cedel (or by Agent Members acting for
the account thereof), and no person shall be entitled to effect any
transfer or exchange that would result in any such interest being held
otherwise than in or through such an account; provided that this
paragraph (iv) shall not prohibit any transfer or exchange of such an
interest in accordance with paragraph (ii) above.
(b) Private Placement Legends. Rule 144A Securities and their
-------------------------
Successor Securities and Regulation S Securities and their Successor
Securities shall bear a Private Placement Legend, subject to the
following:
(i) subject to the following clauses of this Section 2.15(b),
a Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Private Placement Legend borne by such Global Security while
represented thereby;
(ii) subject to the following clauses of this Section 2.15(b),
a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Private
Placement Legend borne by such other Security;
(iii) Exchange Securities, and all other Securities sold or
otherwise disposed of pursuant to an effective registration statement
under the Securities Act, together with their respective Successor
Securities, shall not bear a Private Placement Legend;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new
Security which does not bear a Private Placement Legend may be issued
in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate
substantially in the form of Exhibit D hereto, satisfactory to the
Trustee and duly executed by the Holder of such legended Security
- 37 -
or his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and
deliver such a new Security in exchange for or in lieu of such other
Security as provided in this Article II;
(v) a new Security which does not bear a Private Placement
Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof which bears such a
legend if, in the Company's judgment, placing such a legend upon such
new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the direction of the Company, shall authenticate and deliver such a
new Security as provided in this Article II; and
(vi) notwithstanding the foregoing provisions of this Section
2.15(b), a Successor Security of a Security that does not bear a
particular form of Private Placement Legend shall not bear such form
of legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Private
Placement Legend in exchange for such Successor Security as provided
in this Article II.
By its acceptance of any Security bearing the Private Placement
Legend, each Holder of such a Security acknowledges the restrictions on transfer
of such Security set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Security only as provided in this
Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.14 or this Section
2.15. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
In the event that Regulation S is amended during the term of this
Indenture to alter the applicable holding period, all reference in this
Indenture to a holding period for Non-U.S. Persons will be deemed to include
such amendment.
SECTION 2.16. CUSIP Numbers.
-------------
Neither the Company nor the Trustee shall have any responsibility for
any defect in the CUSIP number that appears on any Security, check, advice of
payment or redemption notice, and any such document may contain a statement to
- 38 -
the effect that CUSIP numbers have been assigned by an independent service for
convenience of reference and that neither the Company nor the Trustee shall be
liable for any inaccuracy in such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Rights of Redemption.
--------------------
(a) In addition to the provisions of Sections 4.14 and 11.1 hereof,
the Securities are subject to redemption at any time on or after May 15, 2003,
at the option of the Company, in whole or in part, subject to the conditions,
and at the Redemption Prices, specified in the form of Security attached hereto
as Exhibit A, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the rights of holders of record on relevant record
dates to receive interest due on an interest payment date).
(b) In addition, at any time prior to May 15, 2001, the Company, at
its option, may use the net cash proceeds of one or more Public Equity Offerings
or Strategic Equity Offerings in a single transaction or a series of related
transactions to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under this Indenture at a redemption
price equal to 110.5% of the aggregate principal amount thereof, plus accrued
and unpaid interest thereon, if any, to the redemption date; provided that at
least 65% of the initial aggregate principal amount of Securities remains
outstanding immediately after the occurrence of such redemption. In order to
effect the foregoing redemption, the Company must mail a notice of redemption no
later than 30 days after the closing of the related Public Equity Offering or
Strategic Equity Offering and must consummate such redemption within 60 days of
the closing of the Public Equity Offering or Strategic Equity Offering.
SECTION 3.2. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, or is required to redeem Securities pursuant to Section 3.8 of
this Indenture or Paragraph 13 of the Securities, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Securities to be
redeemed and whether it wants the Trustee to give notice of redemption to the
Holders.
If the Company elects to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall so notify the Trustee of the amount of the reduction and
deliver such Securities with such notice, provided that no Initial Securities
- 39 -
received by the Company in exchange for Exchange Securities may be made the
basis for such credit.
The Company shall give each notice to the Trustee provided for in this
Section 3.2 at least 45 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee). Any such notice may be canceled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.3. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, and in the case of a redemption pursuant to Section 3.8 of
this Indenture or Paragraph 13 of the Securities, the Trustee shall select the
Securities or portions thereof for redemption on a pro rata basis, by lot or in
such other manner as the Trustee shall determine to be fair and appropriate and
in such manner as complies with any applicable Depositary, legal and stock
exchange requirements. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.4. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date
(other than in connection with a Special Mandatory Redemption, which requires at
least seven days notice), the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to the Trustee and each Holder whose
Securities are to be redeemed to such Holder's last address as then shown upon
the books of the Registrar. At the Company's request, the Trustee shall give
the notice of redemption in the Company's name and at the Company's expense.
Each notice for redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued and unpaid
interest, if any, to be paid upon such redemption;
(3) the name, address and telephone number of the Paying Agent;
- 40 -
(4) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect
the Redemption Price;
(5) that, unless (a) the Company defaults in its obligation to
deposit cash with the Paying Agent in accordance with Section 3.6
hereof or (b) such redemption payment is prohibited pursuant to
this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of
such Securities is to receive payment of the Redemption Price,
including any accrued and unpaid interest to the Redemption Date,
upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple
thereof, of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of such
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the optional redemption provisions of Paragraph 5 of
the Securities or pursuant to the mandatory redemption provisions
of Section 3.8 of this Indenture and Paragraph 13 of the
Securities.
SECTION 3.5. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including any accrued and unpaid interest to the
Redemption Date. Upon surrender to the Trustee or Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price, including interest,
if
- 41 -
any, accrued and unpaid to the Redemption Date; provided that if the Redemption
Date is after a regular Record Date and on or prior to the Interest Payment
Date, the accrued interest shall be payable to the Holder of the redeemed
Securities registered on the relevant Record Date; and provided, further, that
if a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day.
SECTION 3.6. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) cash
sufficient to pay the Redemption Price of, including any accrued and unpaid
interest on, all Securities to be redeemed on such Redemption Date (other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation). The Paying Agent
shall promptly return to the Company any cash so deposited which is not required
for that purpose.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prohibited under this Indenture, interest on the Securities to
be redeemed will cease to accrue on the applicable Redemption Date, whether or
not such Securities are presented for payment. Notwithstanding anything herein
to the contrary, if any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall continue to accrue and be paid from the Redemption Date until
such payment is made on the unpaid principal, and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 4.1 hereof and the Securities.
SECTION 3.7. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.8. Special Mandatory Redemption.
----------------------------
(a) In addition to any payments required by Section 11.1 hereof, if
consummation of the Merger has not occurred on or prior to the earlier to occur
of (i) termination of the Merger Agreement or (ii) 150 days after the Issue Date
if
- 42 -
the Escrow Funds have not been released by that time (provided that the 150-day
period may be extended at the option of the Company up to an additional 120 days
if (A) the Company shall have deposited an additional amount (to be reasonably
determined by the Initial Purchasers on the same basis as the determination of
the Additional Escrow Amount) in the Escrow and Pledge Account for the benefit
of the holders of the Securities, (B) the basis under which the Merger Agreement
is not satisfied on such 150th day relates to pending Federal Communications
Commission or other governmental or regulatory approvals, (C) the lenders under
the Credit Facility shall, in their discretion, have extended their commitment
to lend no earlier than the date to which such escrow has been extended, (D) the
Company shall have issued a press release in a reasonably commercial manner and
notified the Trustee with respect to such extension of the escrow period and (E)
the Company shall have provided the Trustee with an Officers' Certificate as to
satisfaction of the above conditions) the Company shall redeem all of the
outstanding Securities upon at least seven (7) days' prior written notice to the
Holders with the Escrow Funds delivered to the Paying Agent pursuant to the
terms of the Pledge and Escrow Agreement, at a redemption price equal to the
Special Redemption Price, plus accrued and unpaid interest, if any, to the date
of redemption (the "Special Mandatory Redemption").
(b) Once a date for any such redemption has been publicly announced,
it shall not be changed. The Trustee shall promptly notify the Holders of the
date fixed for any redemption pursuant to this Section 3.8.
(c) "Special Redemption Price" means, with respect to any Securities
as of any date of redemption with respect thereto, an amount equal to 101% of
the principal amount thereof.
(d) Other than as specifically provided in this Section 3.8, any
redemption pursuant to this Section 3.8 shall be made pursuant to the provisions
of Section 3.1 through 3.7 hereof.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid by the
Company on the date it is due if the Trustee or Paying Agent (other than the
Company or an Affiliate of the Company) holds for the benefit of the Holders, on
or before 10:00 a.m. New York City time on that date, cash deposited and
designated for and sufficient to pay the installment. The Company shall pay
interest on overdue
- 43 -
principal and on overdue installments of interest at the rate specified in the
Securities compounded semi-annually, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities 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 address of the Trustee set forth in Section 13.2. The Company
may also from time to time designate one or more other offices or agencies where
the Securities 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 initially
designates the Corporate Trust Office of the Trustee at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Room
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as such office.
SECTION 4.3. Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, if,
immediately prior or after giving effect thereto (a) a Default or an Event of
Default would exist, (b) the Company would not be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.11, or (c) the
aggregate amount of all Restricted Payments made by the Company and its
Restricted Subsidiaries, including such proposed Restricted Payment (if not made
in cash, then the fair market value of any property used therefor) from and
after the Issue Date and on or prior to the date of such Restricted Payment,
shall exceed the sum of (i) the amount determined by subtracting (x) 2.0 times
the aggregate Consolidated Interest Expense of the Company for the period (taken
as one accounting period) from the Issue Date to the last day of the last full
fiscal quarter prior to the date of the proposed Restricted Payment (the
"Computation Period") from (y) Operating Cash Flow of the Company for the
Computation Period, plus
- 44 -
(ii) the aggregate Net Proceeds received by the Company from the sale (other
than to a Subsidiary of the Company) of its Qualified Capital Stock after the
Issue Date and on or prior to the date of such Restricted Payment (other than
any such Net Proceeds received by the Company in connection with the financing
of the Merger) plus (iii) to the extent not otherwise included in clauses (i) or
(ii), above, an amount equal to the net reduction in Investments in Unrestricted
Subsidiaries resulting from payments of dividends, repayment of loans or
advances, or other transfers of assets, in each case to the Company or any
Wholly Owned Restricted Subsidiary of the Company from Unrestricted
Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously made by the Company and any Restricted
Subsidiary in such Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in clause (b)
or (c) of the immediately preceding paragraph will not prohibit (and the
provision set forth in clause (a) of the immediately preceding paragraph will
not prohibit the payment described in clause (ii)) (i) the use of an aggregate
of $2.5 million to be used for Restricted Payments not otherwise permitted by
this Section 4.3 (provided that only $1.0 million of such amount may be used for
Restricted Payments prior to one year after the Issue Date and such $1.0 million
amount prior to one year after the Issue Date may not be used to make (a)
dividends or other distributions on shares of Capital Stock of the Company or
any of its Subsidiaries or (b) pay management or other similar fees to equity
investors (or their Affiliates) in the Company), (ii) the payment of any
dividend within 60 days after the date of its declaration if such dividend could
have been made on the date of its declaration in compliance with the foregoing
provisions and (iii) the redemption, defeasance, repurchase or other acquisition
or retirement of any Indebtedness or Capital Stock of the Company or its
Restricted Subsidiaries either in exchange for or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Qualified Capital Stock (in the case of any redemption, defeasance, repurchase
or other acquisition or retirement of any Junior Indebtedness or Capital Stock
of the Company or its Restricted Subsidiaries) or Junior Indebtedness (in the
case of any redemption, defeasance, repurchase or other acquisition or
retirement of any Indebtedness of the Company or its Restricted Subsidiaries) of
the Company, (iv) the payment of management or other similar fees to equity
investors (or their Affiliates) in the Company in an amount not to exceed $1.0
million in the aggregate in any fiscal year, (v) the purchase, redemption or
other acquisition or retirement for value of Capital Stock of the Company from
employees, former employees, directors, former directors, consultants and former
consultants of the Company or any of its Subsidiaries pursuant to the terms of
the agreements pursuant to which such Capital Stock was acquired in an amount
not to exceed $2.5 million in the aggregate in any calendar year, (vi)
repurchases of Capital
- 45 -
Stock of the Company deemed to occur upon exercise of stock options if such
Capital Stock represents a portion of the exercise price of such options and
(vii) acquisitions or repurchases or other payments in respect of PriCellular
Class A Shares, PriCellular Class B Shares, PriCellular Series A Preferred Stock
or the Convertible Notes, in each case of PriCellular or options or warrants to
purchase any of the foregoing pursuant to the Merger Agreement.
In determining the aggregate amount expended for Restricted Payments
in accordance with clause (c) of the first paragraph of this Section 4.3, 100%
of the amounts expended under clauses (i) through (v) of the immediately
preceding paragraph shall be deducted.
SECTION 4.4. Corporate Existence.
-------------------
Subject to Article V, the Company 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 or other existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of each
of them and the rights (charter and statutory) and corporate franchises of the
Company and each of the Company's Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve, with respect to itself, any
right or franchise, and with respect to any Restricted Subsidiaries of the
Company, any such existence, right or franchise, if (a) the Board of Directors
of the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such entity and (b) the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 4.5. Payment of Taxes and Other Claims.
---------------------------------
Except with respect to immaterial items, the Company shall, and shall
cause each of its Restricted Subsidiaries to, pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon the Company
or any of its Restricted Subsidiaries or any of their respective properties and
assets and (ii) all lawful claims, whether for labor, materials, supplies,
services or anything else, which have become due and payable and which by law
have or may become a Lien upon the property and assets of the Company or any of
its Restricted Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
- 46 -
SECTION 4.6. Maintenance of Properties and Insurance.
---------------------------------------
The Company shall cause all material properties used or useful to the
conduct of its business and the business of each of its Restricted Subsidiaries
to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
its reasonable judgment may be necessary, so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 4.6 shall prevent the Company from discontinuing
any operation or maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is (a), in the judgment of the Board of
Directors of the Company, desirable in the conduct of the business of such
entity and (b) not disadvantageous in any material respect to the Holders.
The Company shall provide, or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the reasonable, good
faith opinion of the Company is adequate and appropriate for the conduct of the
business of the Company and such Restricted Subsidiaries in a prudent manner,
with (except for self-insurance) reputable insurers or with the government of
the United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the reasonable, good faith opinion of the Company and adequate and appropriate
for the conduct of the business of the Company and such Restricted Subsidiaries
in a prudent manner for entities similarly situated in the industry, unless
failure to provide such insurance (together with all other such failures) would
not have a material adverse effect on the financial condition or results of
operations of the Company or such Restricted Subsidiaries.
SECTION 4.7. Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company shall deliver to the Trustee within 120 days after the
end of its fiscal year an Officers' Certificate complying with Section 314(a)(4)
of the TIA and stating that a review of its activities and the activities of its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled their obligations under this
Indenture and further stating, as to each such Officer signing such certificate,
whether or not the signer knows of any failure by the Company or any Subsidiary
of the Company to comply with any conditions or covenants in this Indenture and,
if such signer does know of such a failure to comply, the certificate shall
describe such failure with particularity. The Officers' Certificate shall also
notify the
- 47 -
Trustee should the relevant fiscal year end on any date other than the current
fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any payment
to or by the Trustee in respect of the Securities, an Officers' Certificate
specifying such Default, Event of Default or fact and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of any Default, any Event of Default or any such fact unless
one of its Trust Officers receives notice thereof from the Company or any of the
Holders.
SECTION 4.8. Provision of Financial Statements.
---------------------------------
After the earlier to occur of the consummation of the Exchange Offer
and the 120th calendar day following the Merger Date, whether or not the Company
is subject to Section 13(a) or 15(d) of the Exchange Act, the Company will, to
the extent permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) if the
Company were so subject, such documents to be filed with the Commission on or
prior to the date (the "Required Filing Date") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all holders, as their names and addresses appear in the
security register, without cost to such holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to either of such
Sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective holder at the Company's cost. So long as any of
the Initial Securities remain outstanding, the Company will make available to
any prospective purchaser of Initial Securities or beneficial owner of
Securities in connection with any sale thereof the information required by Rule
144(d)(4) under the Securities Act, until such time as the Company has either
exchanged the Initial Securities for Exchange Securities or until such time as
the holders thereof have disposed of such Initial Securities pursuant to an
effective registration statement under the Securities Act.
- 48 -
SECTION 4.9. [INTENTIONALLY OMITTED].
-----------------------
SECTION 4.10. Limitation on Transactions with Related Persons.
-----------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries or Unrestricted Subsidiaries to, enter into any contract,
agreement, arrangement or transaction with any Related Person (each a "Related
Person Transaction"), or any series of Related Person Transactions, except for
transactions (a) entered into pursuant to clause (iv) of Section 4.3 and (b)
made in good faith, the terms of which are (i) fair and reasonable to the
Company or such Subsidiary, as the case may be, and (ii) are at least as
favorable as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an arm's
length basis with Persons who are not Related Persons.
Without limiting the foregoing, (a) with respect to any Related Person
Transaction or series of Related Person Transactions with an aggregate value in
excess of $1,000,000, the Company delivers an officers' certificate to the
Trustee certifying that such Related Person Transaction or series of Related
Person Transactions satisfies clauses (i) and (ii) in the preceding paragraph,
and (b) any Related Person Transaction or series of Related Person Transactions
with an aggregate value in excess of $5,000,000 must either first be approved by
a majority of the Board of Directors of the Company who are disinterested in the
subject matter of the transaction pursuant to a Board Resolution or the Company
must first obtain a favorable written opinion from an independent financial
advisor of national reputation as to the fairness from a financial point of view
of such transaction to the Company or such Subsidiary, as the case may be.
Notwithstanding the foregoing, the following shall not constitute
Related Person Transactions: (i) reasonable and customary payments on behalf of
directors, officers or employees of the Company or any of its Restricted
Subsidiaries, or in reimbursement of reasonable and customary payments or
reasonable and customary expenditures made or incurred by such Persons as
directors, officers or employees, (ii) any contract, agreement, arrangement, or
transaction solely between or among the Company and any of its Wholly Owned
Restricted Subsidiaries or between or among Wholly Owned Restricted
Subsidiaries of the Company, (iii) any Restricted Payment of the type described
by clauses (i) and (ii) of the definition thereof made to all stockholders on a
pro rata basis and not prohibited by Section 4.3, (iv) any loan or advance by
the Company or a Restricted Subsidiary to employees of the Company or a
Restricted Subsidiary (i) prior to one year from the Issue Date, in an aggregate
amount at any one time outstanding not to exceed $2,000,000, and (ii) thereafter
in the ordinary course of business in an aggregate amount at any one time
outstanding not to exceed
- 49 -
$300,000, (v) any payment pursuant to a tax-sharing agreement between the
Company and any other Person with which the Company is required or permitted to
file a consolidated tax return or with which the Company is or could be part of
a consolidated group for tax purposes, which payments are not in excess of the
tax liabilities attributable solely to the Company and its Restricted
Subsidiaries (as a consolidated group) and (vi) any transaction pursuant to an
agreement in existence on the date of the Indenture or on the Merger Date or any
amendment thereto (so long as any such amendment is not disadvantageous to the
Holders in any material respect).
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness.
---------------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, issue, create, incur, assume, guarantee
or otherwise directly or indirectly become liable for (including as a result of
an acquisition), or otherwise become responsible for, contingently or otherwise
(individually or collectively, to "Incur" or, as appropriate, an "Incurrence"),
any Indebtedness. Neither the accrual of interest (including the issuance of
"pay in kind" securities or similar instruments in respect of such accrued
interest) pursuant to the terms of Indebtedness Incurred in compliance with this
covenant, nor the accretion of original issue discount, nor the mere extension
of the maturity of any Indebtedness shall be deemed to be an Incurrence of
Indebtedness.
Notwithstanding the foregoing, if there exists no Default or Event of
Default immediately prior and subsequent thereto, the Company may Incur
Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if
the Company's Annualized Operating Cash Flow Ratio, after giving effect to the
Incurrence of such Indebtedness, would have been less than 8.5 to 1.0 at any
time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application
of the proceeds therefrom.
In addition, the foregoing limitations will not apply to the
Incurrence of the following; provided that, except in the case of clauses (i),
(vii), (viii) and (xi) below, there exists no Default or Event of Default
immediately prior and subsequent thereto:
(i) Indebtedness of the Company or any of its Restricted
Subsidiaries under a Credit Facility in an aggregate principal amount
at any one time outstanding not to exceed $1.0 billion, reduced by (a)
permanent reductions in commitments in satisfaction of the Net Cash
Proceeds application requirement set forth in Section 4.14, (b)
permanent reductions in amounts outstanding pursuant to scheduled
- 50 -
amortizations and mandatory prepayments in accordance with the terms
thereof (to the extent actually made), (c) the principal amount of the
Old Notes that at the relevant date of determination is outstanding
after consummation of the Merger and the transactions consummated
substantially contemporaneously therewith (other than Old Notes which
have been properly defeased) and (d) any Indebtedness outstanding
pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more
bank credit facilities provided such Indebtedness could be incurred by
the Issuer under the Annualized Operating Cash Flow Ratio provision
set forth in the second paragraph of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) Indebtedness represented by the Old Notes or the
Convertible Notes that remain outstanding after consummation of the
Merger and the transactions consummated substantially
contemporaneously therewith;
(v) Indebtedness between the Company and any Restricted
Subsidiary of the Company or between Restricted Subsidiaries of the
Company, provided that, in the case of Indebtedness of the Company,
such obligations shall be unsecured and subordinated in all respects
to the Holders' rights pursuant to the Securities and the Company's
guarantee under the Credit Facility;
(vi) Capitalized Lease Obligations and Purchase Money
Indebtedness in an aggregate amount or aggregate principal amount, as
the case may be, outstanding at any time not to exceed in the
aggregate $20,000,000, provided that in the case of Purchase Money
Indebtedness, such Indebtedness shall not constitute more than 100% of
the cost (determined in accordance with GAAP) to the Company or such
Restricted Subsidiary of the property purchased or leased with the
proceeds thereof;
(vii) Indebtedness of the Company or any Restricted Subsidiary
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from guarantees or letters
of credit, surety bonds or performance bonds securing any obligations
of the Company or its Restricted Subsidiaries pursuant to such
agreements, in any case Incurred in connection with the disposition of
any business, assets or Restricted
- 51 -
Subsidiary of the Company to the extent none of the foregoing results
in the obligation to repay an obligation for money borrowed by any
Person and are limited in aggregate amount to no greater than 10% of
the fair market value of such business, assets or Restricted
Subsidiary so disposed of;
(viii) any guarantee by any Restricted Subsidiary made in
accordance with the provisions of Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of a new
Restricted Subsidiary, the majority of whose revenues for the most
recent twelve months for which audited or unaudited financial
statements are available are from a Related Business, or of property,
business or assets which, or Capital Stock of a Person all or
substantially all of whose assets, are a type generally used in a
Related Business; provided that such Indebtedness was Incurred by the
prior owner of such Restricted Subsidiary, property, business, assets
or Capital Stock prior to such contemplation of, such acquisition by
the Company or one of its Restricted Subsidiaries and was not Incurred
in connection with, or in contemplation of, such acquisition by the
Company or one of its Restricted Subsidiaries; and provided, further,
that the principal amount (or accreted value, as applicable) of such
Indebtedness, together with any other outstanding Indebtedness
Incurred pursuant to this clause (ix), does not exceed $25.0 million
at any one time outstanding;
(x) Indebtedness of the Company or any Restricted Subsidiary
under standby letters of credit or reimbursement obligations with
respect thereto issued in the ordinary course of business and
consistent with industry practices limited in aggregate amount to $5.0
million at any one time outstanding;
(xi) Interest Rate Protection Obligations relating to (A)
Indebtedness of the Company or any Restricted Subsidiary (which
Indebtedness is otherwise permitted to be Incurred under this
covenant) or (B) Indebtedness for which a lender has provided a
commitment in an amount reasonably anticipated to be Incurred by the
Company or any Restricted Subsidiary in the 12 months after such
Interest Rate Protection Obligations has been Incurred; provided,
however, that the notional principal amount of such Interest Rate
Protection Obligation does not exceed the principal amount of the
Indebtedness (including Indebtedness subject to
- 52 -
commitments) to which such Interest Rate Protection Obligations
relate;
(xii) Indebtedness of the Company (other than Indebtedness
permitted by clauses (i) through (xi) or (xiv) hereof) not to exceed
$75.0 million at any one time outstanding;
(xiii) Refinancing Indebtedness Incurred to extend, renew,
replace or refund Indebtedness permitted under clauses (iii) or (iv)
of this paragraph (plus any reasonably determined prepayment premium
necessary to accomplish such refinancing and such reasonable fees and
expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to
extend, renew, replace or refund Indebtedness permitted under clause
(i) of this paragraph (plus any reasonably determined prepayment
premium necessary to accomplish such refinancing and such reasonable
fees and expenses incurred in connection therewith).
SECTION 4.12. Limitations on Restricting Subsidiary Dividends.
-----------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, assume or suffer to exist any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
Restricted Subsidiaries, except encumbrances and restrictions existing under (i)
this Indenture and the Securities, (ii) the Credit Facility as in effect on the
Merger Date or thereafter (provided that any such encumbrance or restriction
does not restrict dividends by any Restricted Subsidiary to the Company or any
other Restricted Subsidiary in an amount equal to the interest payments on the
Securities then due, except if a payment default or any default under any
financial maintenance covenant under the Credit Facility shall have occurred and
be continuing or would arise therefrom; and provided, further, that any such
encumbrances or restrictions incurred under a Credit Facility after the Merger
Date shall not result in such encumbrances or restrictions being less favorable
in the aggregate in any material respect to the holders of the Securities than
the encumbrances or restrictions incurred under the Credit Facility on the
Merger Date, as determined in good faith by the Board of Directors of that
Company), (iii) any applicable law or any governmental or administrative
regulation or order, (iv) Refinancing Indebtedness permitted under this
Indenture, provided that the restrictions contained in the
- 53 -
instruments governing such Refinancing Indebtedness are no more restrictive in
the aggregate than those contained in the instruments governing the Indebtedness
being refinanced immediately prior to such refinancing, (v) restrictions with
respect solely to a Restricted Subsidiary of the Company imposed pursuant to a
binding agreement which has been entered into for the sale or disposition of all
or substantially all of the Capital Stock or assets of such Restricted
Subsidiary, provided such restrictions apply solely to the Capital Stock or
assets being sold of such Restricted Subsidiary, (vi) restrictions contained in
any agreement relating to a Person or real or tangible personal property
acquired after the Issue Date which are not applicable to any Person or
property, other than the Person or property so acquired and which were not put
in place in connection with, or in contemplation of, such acquisition, (vii) any
agreement (other than those referred to in clause (vi)) of a Person acquired by
the Company or a Restricted Subsidiary of the Company, which restrictions
existed at the time of acquisition or (viii) encumbrances or restrictions
contained in the documentation governing a Permitted Joint Venture permitted
pursuant to clause (ix) of the definition of "Permitted Investment."
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into the ordinary course of
business, consistent with past practices nor (b) Liens on assets securing Senior
Indebtedness, shall in and of themselves be considered a restriction on the
ability of the applicable Restricted Subsidiary to transfer such agreement or
assets, as the case may be.
SECTION 4.13. Limitations on Liens.
--------------------
The Company will not and will not permit any Restricted Subsidiary,
directly or indirectly, to Incur or suffer to exist any Lien (other than
Permitted Liens) upon any of its property or assets, whether now owned or
hereafter acquired.
SECTION 4.14. Limitation on Asset Sales and Sales of Subsidiary
-------------------------------------------------
Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, businesses or assets, including by merger or consolidation, and
including any sale or other transfer or issuance of any Capital Stock of any
Restricted Subsidiary of the Company, whether by the Company or a Restricted
Subsidiary (an "Asset Sale"), unless (1)(a) within one year after the date of
such Asset Sale, an amount equal to the Net Cash Proceeds therefrom (the "Asset
Sale Amount") are applied (i) to the optional redemption of the Securities in
accordance with the terms of Article III of this Indenture and other
Indebtedness of the Company ranking on a
- 54 -
parity with the Securities from time to time outstanding with similar provisions
requiring the Company to make an offer to purchase or to redeem such
Indebtedness with the proceeds from asset sales, pro rata in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Securities and such other
Indebtedness then outstanding or (ii) to the repurchase of the Securities and
such other Indebtedness pursuant to an irrevocable, unconditional offer (the
"Asset Sale Offer") to repurchase such Indebtedness at a purchase price (the
"Asset Sale Offer Price") of 100% of the principal amount thereof in the case of
the Securities or 100% of the principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) of such Indebtedness, plus,
in each case, accrued interest to the date of payment, made within one year of
such Asset Sale or (b) within one year of such Asset Sale, the Asset Sale Amount
is (i) invested (or committed, pursuant to a binding commitment subject only to
reasonable, customary closing conditions, to be invested, and in fact is so
invested, within an additional 90 days) in tangible assets and property (other
than notes, obligations or securities), which in the good faith reasonable
judgment of the Board of Directors of the Company are of a type used in a
Related Business, or Capital Stock of a Person (which, if such Person becomes a
Subsidiary of the Company by virtue of such Asset Sale, shall initially be
designated a Restricted Subsidiary) all or substantially all of whose assets and
property (in the good faith reasonable judgment of the Board of Directors of the
Company) are of a type used in a Related Business (provided that, with respect
to such Capital Stock, all of the requirements of the last proviso of clause (v)
of the following paragraph shall have been satisfied) or (ii) used to
permanently retire Senior Indebtedness or Indebtedness of any Restricted
Subsidiary, (2) with respect to any transaction or related series of
transactions of securities, property or assets with an aggregate fair market
value in excess of $2,500,000, at least 75% of the value of consideration for
the assets disposed of in such Asset Sale (excluding (a) Senior Indebtedness
(and any Refinancing Indebtedness issued to refinance any such Indebtedness)
assumed by a transferee which assumption permanently reduces the amount of
Indebtedness outstanding on the Issue Date and permitted to have been Incurred
pursuant to Section 4.11 (including that in the case of a revolver or similar
arrangement that makes credit available, such commitment is permanently reduced
by such amount), (b) Purchase Money Indebtedness secured exclusively by the
assets subject to such Asset Sale which is assumed by a transferee and (c)
marketable securities that are promptly converted into cash or Cash Equivalents)
consists of cash or Cash Equivalents, provided that any cash or Cash Equivalents
received within 12 months following any such Asset Sale upon conversion of any
property or assets (other than in the form of cash or Cash Equivalents) received
in consideration of such Asset Sale shall be applied promptly in the manner
required of Net Cash Proceeds of any such Asset Sale as set forth above, (3) no
Default or Event of Default shall occur
- 55 -
or be continuing after giving effect to, on a pro forma basis, such Asset Sale,
and (4) the Board of Directors of the Company determines in good faith that the
Company or such Restricted Subsidiary, as applicable, would receive fair market
value in consideration of such Asset Sale. An Asset Sale Offer may be deferred
until the accumulated Net Cash Proceeds from Asset Sales not applied to the uses
set forth in (1)(b) above exceeds $5,000,000 and each Asset Sale Offer shall
remain open for 20 Business Days following its commencement and no longer,
except as otherwise required by applicable law (the "Asset Sale Offer Period").
Upon expiration of the Asset Sale Offer Period, the Company shall apply the
Asset Sale Amount, plus an amount equal to accrued interest to the purchase of
all Indebtedness properly tendered (on a pro rata basis as described above if
the Asset Sale Amount is insufficient to purchase all Indebtedness so tendered)
at the Asset Sale Offer Price (together with accrued interest).
Notwithstanding the foregoing provisions of the prior paragraph:
(i) the Company and its Restricted Subsidiaries may, in the
ordinary course of business, convey, sell, lease, transfer, assign or
otherwise dispose of assets acquired and held for resale in the
ordinary course of business;
(ii) the Company and its Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets pursuant
to and in accordance with Section 5.1;
(iii) the Company and its Restricted Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no longer
necessary for the proper conduct of the business of the Company or
such Restricted Subsidiary, as applicable;
(iv) the Company and its Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets to the
Company or any of its Wholly Owned Restricted Subsidiaries; and
(v) the Company and its Restricted Subsidiaries may, in the
ordinary course of business (or, if otherwise than in the ordinary
course of business, upon receipt of a favorable written opinion by an
independent financial advisor of national reputation as to the
fairness from a financial point of view to the Company or such
Restricted Subsidiary of the proposed transaction), exchange all or a
portion of its property, businesses or assets for property, businesses
or assets which, or Capital Stock of a Person all or substantially all
of whose
- 56 -
assets, are of a type used in a Related Business (provided that such
Person shall initially be designated a Restricted Subsidiary if such
Person becomes a Subsidiary of the Company by virtue of such Asset
Sale), or a combination of any such property, businesses, or assets,
or Capital Stock of such a Person and cash or Cash Equivalents;
provided that (i) there shall not exist immediately prior or
subsequent thereto a Default or an Event of Default, (ii) a majority
of the independent directors of the Board of Directors of the Company
shall have approved a resolution of the Board of Directors that such
exchange is fair to the Company or such Restricted Subsidiary, as the
case may be, and (iii) any cash or Cash Equivalents received pursuant
to any such exchange shall be applied in the manner applicable to Net
Cash Proceeds from an Asset Sale as set forth pursuant to the
provisions of the immediately preceding paragraph of this covenant;
and provided, further, that any Capital Stock of a Person received in
an Asset Sale pursuant to this clause (v) shall be owned directly by
the Company or a Restricted Subsidiary and, when combined with the
Capital Stock of such Person already owned by the Company and its
Restricted Subsidiaries, shall constitute a majority of the voting
power and Capital Stock of such Person.
Restricted Payments that are made in compliance with, and are counted
against amounts available to be made as Restricted Payments pursuant to clause
(c) of Section 4.3, without giving effect to clause (i) of the second paragraph
thereof, shall not be deemed to be Asset Sales.
Any Asset Sale Offer shall be made in compliance with all applicable
laws, rules, and regulations, including, if applicable, Regulation 14E of the
Exchange Act and the rules and regulations thereunder and all other applicable
Federal and state securities laws, and any provisions of this Indenture that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
The Company shall accumulate all Net Cash Proceeds and the aggregate
amount of such accumulated Net Cash Proceeds not used for the purposes permitted
and within the time provided by this Section 4.14 is referred to as the
"Accumulated Amount."
For purposes of this Section 4.14, "Minimum Accumulation Date" means
each date on which the Accumulated Amount exceeds $5,000,000. Not later than 10
Business Days after each Minimum Accumulation Date, the Company will commence an
Asset Sale Offer to the Holders and holders of other Indebtedness of the Company
ranking pari passu in right of payment with the Securities from time
- 57 -
to time outstanding with similar provisions requiring the Company to make an
offer to purchase or to redeem such Indebtedness with the proceeds from asset
sales to purchase, on a pro rata basis in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an original
issue discount) of the Securities and such other Indebtedness then outstanding,
for cash, Securities and such other Indebtedness that will have an aggregate
principal amount (and accreted value, as applicable)(the "Asset Sale Offer
Amount") on the purchase date equal to the Accumulated Amount, at a purchase
price equal to the Asset Sale Offer Price, plus accrued but unpaid interest, if
any, to, and including, the date of purchase (the "Asset Sale Purchase Date"),
which date shall be no later than 30 Business Days after the first date on which
the Asset Sale Offer is required to be made. Notice of an Asset Sale Offer will
be sent 20 Business Days prior to the close of business on the earlier of (a)
the third Business Day prior to the Asset Sale Purchase Date and (b) the third
Business Day following the expiration of the Asset Sale Offer (such earlier date
being the "Final Put Date"), by first-class mail, by the Company to each Holder
at its registered address, with a copy to the Trustee. The notice to the Holders
will contain all information, instructions and materials required by applicable
law or otherwise material to such Holders' decision to tender Securities
pursuant to the Asset Sale Offer. The notice to Holders, which (to the extent
consistent with the Indenture) shall govern the terms of the Asset Sale Offer,
shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice
and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Final
Put Date, and the Asset Sale Purchase Date, which Asset Sale
Purchase Date shall be on or prior to 40 Business Days following
the Minimum Accumulation Date;
(3) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing cash with the
Paying Agent in accordance with the penultimate paragraph of this
Section 4.14 or such payment is otherwise prevented, any
Security, or portion thereof, accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the
Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion thereof,
purchased pursuant to an Asset Sale Offer will be required to
- 58 -
surrender the Security, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section
4.14, notwithstanding anything this Indenture to the contrary, be
the Company or any Affiliate of the Company) at the address
specified in the notice prior to the close of business on the
Final Put Date;
(6) that Holders will be entitled to withdraw their elections, in
whole or in part, if the Paying Agent (which may not for purposes
of this Section 4.14, notwithstanding any other provision of this
Indenture, be the Company or any Affiliate of the Company)
receives, up to the close of business on the Final Put Date, a
telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities
the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of
Securities purchased;
(7) that if Indebtedness in a principal amount in excess of the
principal amount of Securities to be acquired pursuant to the
Asset Sale Offer is tendered and not withdrawn, the Company shall
purchase Indebtedness on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of
Indebtedness issued with an original issue discount) thereof
(with such adjustments as may be deemed appropriate by the
Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts
regarding such Asset Sales.
On or before an Asset Sale Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof properly tendered and not properly
withdrawn pursuant to the Asset Sale Offer on or before the Final Put Date (on a
pro rata basis if required pursuant to paragraph (7) hereof), (ii) deposit with
the Paying Agent cash sufficient to pay the Asset Sale Offer Price for all
Securities or portions thereof so tendered and accepted and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the
- 59 -
Securities or portions thereof being purchased by the Company. The Paying Agent
shall on each Asset Sale Purchase Date mail or deliver to Holders of Securities
so accepted payment in an amount equal to the Asset Sale Offer Price for such
Securities, and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Security equal in principal amount to any unpurchased portion
of the Security surrendered. Any Security not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Trustee shall not
be deemed to have notice of any Asset Sale Purchase Date unless a Trust Officer
receives notice thereof from the Company or any Holder.
If the amount required to acquire all Indebtedness properly tendered
by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount") made
pursuant to this Section 4.14 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by
the Company for general corporate purposes without restriction, unless otherwise
restricted by the other provisions of the Indenture. Upon consummation of any
Asset Sale Offer made in accordance with the terms of the Indenture, the
Accumulated Amount will be reduced to zero irrespective of the amount of
Indebtedness tendered pursuant to the Asset Sale Offer.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium of, or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.16. INTENTIONALLY OMITTED.
---------------------
SECTION 4.17. INTENTIONALLY OMITTED.
---------------------
SECTION 4.18. Limitation on Lines of Business.
-------------------------------
Neither the Company nor any of its Restricted Subsidiaries shall
directly or indirectly engage in any line or lines of business activity other
than that
- 60 -
which, in the reasonable, good faith judgment of the Board of Directors of the
Company, is a Related Business.
SECTION 4.19. Restriction on Sale and Issuance of Subsidiary Stock.
----------------------------------------------------
The Company will not sell, and will not permit any of its Restricted
Subsidiaries to issue or sell, any shares of 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, except for shares of common stock with no
preferences or special rights or privileges and with no redemption or prepayment
provisions ("Special Rights"); provided that, in the case of a Restricted
Subsidiary that is a partnership or joint venture partnership (a "Restricted
Partnership") the Company or any of its Restricted Subsidiaries may sell or such
Restricted Partnership may issue or sell Capital Stock of such Restricted
Partnership with Special Rights no more favorable than those held by the Company
or such Restricted Subsidiary in such Restricted Partnership.
SECTION 4.20. Limitation on Issuances of Guarantee of Indebtedness.
----------------------------------------------------
(a) The Company will not cause or permit any Restricted Subsidiary
(which is not a Guarantor), directly or indirectly, to guarantee, assume or in
any other manner become liable with respect to any Indebtedness of the Company
(other than under the Credit Facility) unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a Guarantee of the Securities on the same terms as the guarantee
of such Indebtedness except that (A) such guarantee need not be secured unless
required pursuant to Section 4.13 and (B) if such Indebtedness is by its terms
expressly subordinated in right of payment to the Securities, any such
assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee of the Securities at least to the same extent as such
Indebtedness is subordinated to the Securities; provided, however, that the
foregoing shall not apply to Indebtedness of any Restricted Subsidiary that
would otherwise be covered solely by reason of the Company's guarantee of such
Indebtedness.
(b) Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary of the Securities shall provide by its terms that it (and all Liens
securing the same) shall be automatically and unconditionally released and
discharged upon any sale, exchange or transfer, to any Person not an Affiliate
of the Company, all of the Company's Capital Stock in, or all or substantially
all the assets of, such Restricted Subsidiary, which transaction is in
compliance with the
- 61 -
terms of the Indenture and such Restricted Subsidiary is released from all
guarantees, if any, by it of other Indebtedness of the Company or any Restricted
Subsidiaries and (ii) the release by the holders of the Indebtedness of the
Company described in clause (a) above of their security interest or their
guarantee by such Restricted Subsidiary (including any deemed release upon
payment in full of all obligations under such Indebtedness), at such time as (A)
no other Indebtedness of the Company has been secured or guaranteed by such
Restricted Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is secured or guaranteed by such Restricted Subsidiary also
release their security interest in or guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness).
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
-------------------------------------------
The Company will not consolidate with or merge with or into another
Person other than in connection with the Merger, or sell, lease, convey,
transfer or otherwise dispose of all or substantially all of its assets
(computed on a consolidated basis), whether in a single transaction or a series
of related transactions, to another Person or group of affiliated Persons,
unless (i) either (a) the Company is the continuing entity or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Company in
connection with the Securities and this Indenture; (ii) no Default or Event of
Default shall exist or shall occur immediately after giving effect on a pro
forma basis to such transaction; (iii) immediately after giving effect to such
transaction on a pro forma basis, the consolidated resulting surviving or
transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.11; and (iv) the
Company shall have delivered to the Trustee an Officers' Certificate confirming
compliance with the requirements of this Section 5.1.
For purposes of this Section, the sale, lease, conveyance, assignment,
transfer or other disposition of all or substantially all of the properties and
assets of one or more Restricted Subsidiaries of the Company, which properties
and assets, if held by the Company instead of such Restricted Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
- 62 -
SECTION 5.2. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger or any transfer (other than a lease)
of all or substantially all of the assets of the Company (other than a transfer
that results in the transfer of assets constituting or accounting for less than
95% of the consolidated assets (as of the last balance sheet available to the
Company), revenues, or Operating Cash Flow of the Company (as of the last twelve
month period for which financial statements are available to the Company)) in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made, shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named therein as the Company, and the Company
shall be released from the obligations under the Securities and this Indenture.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the failure by the Company to pay any installment of interest on
the Securities as and when the same becomes due and payable, and
(x) with respect to the first six Interest Payment Dates, the
continuance of any such failure for 10 days and (y) with respect
to any installment of interest after the first six Interest
Payment Dates, the continuance of such failure for a period of 30
days;
(2) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Securities when and as the
same becomes due and payable at maturity, redemption, by
acceleration or otherwise, including, without limitation, payment
of the Change of Control Purchase Price in accordance with
Article XI, or the Asset Sale Offer Price in accordance with
Section 4.14;
(3) the failure by the Company to observe or perform any other
covenant, agreement or warranty, contained in the Securities
- 63 -
or this Indenture (other than a default in the performance of any
covenant or agreement which is specifically dealt with elsewhere
in this Section 6.1), or failure by the Company to cause each
Unrestricted Subsidiary to comply with clause (c) of the
definition of "Unrestricted Subsidiary," and the continuance of
such failure for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by Holders of at least 25% in
aggregate principal amount of the Securities outstanding, a
written notice specifying such default or breach, requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder;
(4) a decree, judgment, or order by a court of competent jurisdiction
shall have been entered adjudging the Company or any of its
Significant Restricted Subsidiaries as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of
the Company or any of its Significant Restricted Subsidiaries
under any bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a period of 60
days; or a decree or order of a court of competent jurisdiction
over the appointment of a receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency of the Company, any of its
Significant Restricted Subsidiaries, or of the property of any
such Person, or for the winding up or liquidation of the affairs
of any such Person, shall have been entered, and such decree,
judgment, or order shall have remained in force undischarged and
unstayed for a period of 60 days;
(5) the Company or any of its Significant Restricted Subsidiaries
shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or
consent seeking reorganization under any bankruptcy or similar
law or similar statute, or shall consent to the filing of any
such petition, or shall consent to the appointment of a
Custodian, receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of it or any of its assets or property,
or shall make a general assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts
generally as they become due, or shall, within the meaning of any
Bankruptcy Law, become insolvent, fails generally to pay
- 64 -
its debts as they become due, or takes any corporate action in
furtherance of or to facilitate, conditionally or otherwise, any
of the foregoing;
(6) one or more defaults in 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 Issue Date, which default results from
the failure to pay Indebtedness at its final maturity date or
results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any
other such Indebtedness which was not paid at its final maturity
date or the maturity of which has been so accelerated, aggregates
$10,000,000 or more; or
(7) final unsatisfied judgments not covered by insurance aggregating
in excess of $10,000,000 at any one time rendered against the
Company or any of its Restricted Subsidiaries and not stayed,
bonded or discharged within 60 days.
If a Default of which the Trustee has actual knowledge occurs and is
continuing, the Trustee must, within 90 days after the occurrence of such
default, give to the Holders notice of such default.
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment.
-------------------------------------------------------
If an Event of Default occurs and is continuing (other than an Event
of Default specified in Section 6.1(4) or (5)) relating to the Company or any
Restricted Subsidiary, then in every such case, unless the principal of all of
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Securities
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Holders) (an "Acceleration Notice"), may declare all of the principal
of the Securities (or the Change of Control Purchase Price if the Event of
Default includes failure to pay the Change of Control Purchase Price) (or the
Special Redemption Price, plus accrued and unpaid interest, if any, to the date
of redemption, in connection with any Special Mandatory Redemption, if the Event
of Default relates to failure to make payment in connection with the Special
Mandatory Redemption), determined as set forth below, including in each case
- 65 -
accrued interest thereon to be due and payable immediately. If an Event of
Default specified in Section 6.1(4) or (5) above relating to the Company or any
Significant Restricted Subsidiary occurs, all principal (or the Change of
Control Purchase Price or Special Redemption Price, as applicable) and accrued
interest thereon will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of Trustee or the
Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of a
majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay (A) all overdue interest on all Securities, (B)
the principal of (and premium, if any, applicable to any
Securities which would become due otherwise than by such
declaration of acceleration, and interest thereon at the rate
borne by the Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
borne by the Securities, (D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.12, including, if
applicable, any Event of Default relating to the covenants
contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent default or impair any
right consequent thereon.
- 66 -
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Company shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal, premium (if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including compensation to, and expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including (1) to file and prove a claim for the whole
amount of principal (and
- 67 -
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceeding, and (2) to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.5. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.6. Priorities.
----------
Any money collected by the Trustee pursuant to this Article VI shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium
(if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
- 68 -
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any) and interest on, the
Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium (if any)
and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
SECTION 6.7. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (A) such Holder has previously given written notice to
the Trustee of a continuing Event of Default; (B) the Holders of not less than
25% in principal amount of then outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder; (C) such Holder or Holders have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities to be incurred or reasonably probable to be incurred in
compliance with such request; (D) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and (E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities; it being understood and intended
that no one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 6.8. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and accrued interest
on, such
- 69 -
Security on the Maturity Date of such payments as expressed in such Security (in
the case of redemption, the Redemption Price on the applicable Redemption Date,
in the case of the Change of Control Purchase Price, on the applicable Change of
Control Purchase Date, and in the case of an Asset Sale Offer, the Asset Sale
Offer Price on the Asset Sale Purchase Date, and to institute suit for the
enforcement of any such payment after such respective dates, and such rights
shall not be impaired without the consent of such Holder.
SECTION 6.9. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 6.11. Control by Holders.
------------------
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee, provided that (1) such
direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction, (3) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, (4) the Trustee may require indemnification to
its satisfaction before taking any action in accordance with such direction and
(5) the Trustee shall not be liable with respect to any action so taken in good
faith.
- 70 -
SECTION 6.12. Waiver of Past Default.
----------------------
Subject to Section 6.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, prior to the declaration of the acceleration of the
maturity of the Securities, waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of, premium,
if any, or interest on, any Security as specified in clauses (1) and (2) of
Section 6.1, or (B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder of
each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
SECTION 6.13. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, 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,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.13 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the Maturity Date
expressed in such Security (including, in the case of redemption, on or after
the Redemption Date).
SECTION 6.14. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all
- 71 -
rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1. Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and
no covenants or obligations shall be implied in or read into
this Indenture which are adverse to the Trustee.
(2) 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 liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless
- 72 -
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(3) 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 6.11.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section 7.1
and shall extend to the Registrar and Paying Agent.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2. Rights of Trustee.
-----------------
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 13.4 and 13.5. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or advice of counsel.
(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 will not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
- 73 -
(e) The Trustee will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the performance of
the covenants in Article IV hereof. In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default hereunder or under the
Pledge and Escrow Agreement except (i) any Event of Default occurring pursuant
to Sections 6.1(1) or 6.1(2) (excluding failure to pay a Change of Control
Purchase Price or Asset Sale Purchase Price), or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge. In the absence of such actual knowledge or notice,
the Trustee may conclusively assume that no default has occurred and is
continuing under this Indenture.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
SECTION 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
the Company's Subsidiaries, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
- 74 -
SECTION 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity, adequacy or
priority of this Indenture or the Securities and it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities, other than the Trustee's
certificate of authentication, or the use or application of any funds received
by a Paying Agent other than the Trustee.
SECTION 7.5. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if it
is actually known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an Event
of Default in payment of principal (or premium, if any) of, or interest on, any
Security (including the payment of the Change of Control Purchase Price on the
Change of Control Purchase Date, the payment of the Redemption Price on the
Redemption Date and the payment of the Asset Sale Offer Price on the Asset Sale
Purchase Date), the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the interest
of the Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, if required by law, mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA ss.
313(a). The Trustee also shall comply with TIA ▇▇.▇▇. 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
SECTION 7.7. Compensation and Indemnity.
--------------------------
The Company agrees to pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the
- 75 -
reasonable compensation, disbursements and expenses of the Trustee's agents,
accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence or
willful misconduct on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall provide reasonable cooperation at the Company's
expense in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel; provided that the
Company will not be required to pay such fees and expenses if they assume the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not pay for any
settlement made without their written consent. The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred by
the Trustee through its negligence or willful misconduct.
To secure the Company's payment obligations in this Section 7.7., the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article VIII of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing
- 76 -
and may appoint a successor trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other 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 Holder or Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company. A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that and provided that all sums
owing to the trustee provided for in Section 7.7 have been paid, the retiring
Trustee shall transfer all property held by it as trustee to the successor
Trustee, subject to the lien provided in Section 7.7, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the
- 77 -
resulting, surviving or transferee corporation without any further act shall, if
such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA ss.
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus of
at least $10,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims against Company.
-------------------------------------------------
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12. Wire Transfers and Investments.
------------------------------
(a) The Trustee shall be authorized to seek confirmation of fund
transfer instructions by telephone call-back to the person or persons designated
on Exhibit E hereto, and the Trustee may rely upon the confirmations of any one
purporting to be the person or persons so designated. The persons and telephone
numbers for call-backs may be changed only in a writing actually received and
acknowledged by the Trustee. The parties to this Indenture acknowledge that
such security procedure is commercially reasonable.
(b) It is understood that the Trustee and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an order it executes
using any such identifying number, even where its use may result in a person
other than the beneficiary being paid, or the transfer of funds to a bank other
than the beneficiary's bank or an intermediary bank designated.
(c) All money held by the Trustee in any of the accounts or funds
established pursuant hereto shall be invested in Marketable U.S. Securities upon
receipt of a Company Request. In the absence of such Company Request, the
Trustee shall invest in those items described in clause (vi) of the definition
of Marketable U.S. Securities. The Trustee may act as principal or agent in the
acquisition or disposition of investments. The Trustee shall not be responsible
for any loss of any investment made in accordance herewith.
- 78 -
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant
---------------------------------------------
Defeasance.
The Company may, at its option and at any time, elect to have Section
8.2 or Section 8.3 applied to all outstanding Securities upon compliance with
the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company shall be deemed to have been discharged from
its obligations with respect to all outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, such Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.5 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities 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 which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Securities to receive solely
from the trust fund described in Section 8.4, and as more fully set forth in
such Section 8.4, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (b) the Company's
obligations with respect to such Securities under Sections 2.4, 2.7, 2.10, 2.13,
2.14, 2.15 and 4.2, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article VIII. Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2 notwithstanding the prior exercise of
its option under Section 8.3 with respect to the Securities.
SECTION 8.3. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company shall be released from its obligations under
the covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.10, 4.11, 4.12,
4.13, 4.14, 4.18, 4.19, 4.20 and Article V (other than the obligation of any
successor to assume the obligations of the Company hereunder) with respect to
the outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall
thereafter
- 79 -
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. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company need not
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, U.S. Legal Tender, Government
Securities or a combination thereof, in such amounts, as in each case will 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 and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of, premium, if
any, and interest on such Securities on the Stated Maturity or on the applicable
Redemption Date of such principal or installment of principal of, premium, if
any, or interest on such Securities and the Holders of Securities must have a
valid, perfected, exclusive security interest in such trust; provided that the
Trustee shall have been irrevocably instructed to apply such U.S. Legal Tender
or Government Securities to said payments with respect to the Securities.
(b) In the case of an election under Section 8.2, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) 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 such Securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Legal Defeasance and
- 80 -
will be subject to Federal income tax in the same amount, in the same manner and
at the same times as would have been the case if such Legal Defeasance had not
occurred;
(c) In the case of an election under Section 8.3, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of such
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, in so far as Section 6.1(4) or 6.1(5)
is concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition is a condition
subsequent which shall not be deemed satisfied until the expiration of such
period, but in the case of Covenant Defeasance, the covenants which are defeased
under Section 8.3 will cease to be in effect unless an Event of Default under
Section 6.1(4) or 6.1(5) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) In the case of an election under either Section 8.2 or 8.3, the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Company pursuant to its election under Section 8.2
or 8.3 was not made by the Company with the intent of preferring the Holders of
such Notes over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others;
and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for or relating to
either the Legal Defeasance under Section 8.2 or the Covenant Defeasance under
Section 8.3 (as the case may be) have been complied with as contemplated by this
Section 8.4.
- 81 -
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities to
--------------------------------------------------------
be Held in Trust; Other Miscellaneous Provisions.
------------------------------------------------
Subject to Section 8.6, all, U.S. Legal Tender and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.6. Repayment to the Company.
------------------------
Subject to any applicable escheat or abandoned property laws, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company within sixty (60) days after termination of such two-year
period; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease. The Trustee shall
not be liable to the Company or any Holder for interest on funds held by it for
the payment and discharge of the interest, or premium (if any) on or principal
of any of the Securities to any Holder. The Company shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.
SECTION 8.7. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or Government Securities in accordance with Section 8.2 or 8.3, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Sections 8.2 and 8.3, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Security following the reinstatement of its obligations,
the Company shall be
- 82 -
subrogated to the rights of the Holders of such Securities to receive such
payment from the cash held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holder, the Company, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or to make any
other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action pursuant to
this clause (1) shall not adversely affect the interests of any
Holder in any respect;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon
the Company or to make any other change that does not adversely
affect the rights of any Holder, provided that the Company has
delivered to the Trustee an Opinion of Counsel stating that such
change does not adversely affect the rights of any Holder;
(3) to provide for collateral or guarantors for the Securities;
(4) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the obligations of the
Company, herein and in the Securities in accordance with Article
V;
(5) to comply with the TIA; or
(6) to provide for the issuance and authorization of the Exchange
Securities.
- 83 -
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with
----------------------------------------------------
Consent of Holders.
------------------
Subject to Section 6.8, with the consent of the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by Board Resolutions, and the Trustee may amend or
supplement this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.8, the Holder or Holders
of not less than a majority, in principal amount of then outstanding Securities
may waive compliance by the Company with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(1) reduce the percentage of principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of interest on any
Security;
(3) reduce the principal amount of any Security, the Change of
Control Purchase Price, the Asset Sale Offer Price or the
Redemption Price;
(4) change the Stated Maturity or the Change of Control Purchase
Date, the Asset Sale Purchase Date, the Asset Sale Offer Period,
or the Change of Control Offer Period of any Security;
(5) alter the redemption provisions of Article III or paragraph 5 of
the Securities or the terms or provisions of Section 4.14 or the
terms or provisions of Article XI, in any case, in a manner
adverse to any Holder;
(6) make any changes in the provisions concerning waivers of Defaults
or Events of Default by Holders of the Securities or the rights
of Holders to recover the principal or premium of, interest on,
or redemption payment with respect to, any
- 84 -
Security, including without limitation any changes in Section
6.8, 6.12 or this third sentence of this Section 9.2;
(7) make the principal of, or the interest on, any Security payable
with anything or in any manner other than as provided for in this
Indenture (including changing the place of payment where, or the
coin or currency in which, any Security or any premium or the
interest thereon is payable) and the Securities as in effect on
the date hereof; or
(8) make the Securities subordinated in right of payment to any
extent or under any circumstances to any other indebtedness.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may
- 85 -
revoke the consent as to his Security or portion of his Security by written
notice to the Company or the Person designated by the Company as the Person to
whom consents should be sent if such revocation is received by the Company or
such Person before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.5. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee
or require the Holder to put an appropriate notation on the Security. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms. Any
failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment, supplement or waiver.
- 86 -
SECTION 9.6. Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture.
ARTICLE X
SECTION 10.1. Security.
--------
(a) At the Release Time (as defined in the Pledge and Escrow
Agreement) which shall occur on or about the Merger Date, the Trustee shall
purchase, for the benefit of the Holders of the Securities a portfolio of
securities initially consisting of Government Securities in such amount as will
be sufficient upon receipt of scheduled interest and/or principal payments of
such Pledged Securities, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first six scheduled interest payments due on the outstanding
Securities (unless already paid) and shall be held by the Trustee in the Escrow
and Pledge Account pending disposition pursuant to the Pledge and Escrow
Agreement.
(b) Each Holder, by its acceptance of a Security, consents and agrees
to the terms of the Pledge and Escrow Agreement (including, without limitation,
the provisions providing for foreclosure and release of the Pledged Securities)
as the same may be in effect or may be amended from time to time in accordance
with its terms, and authorizes and directs the Trustee to enter into the Pledge
and Escrow Agreement and to perform its respective obligations and exercise its
respective rights thereunder in accordance therewith. The Company will do or
cause to be done all such acts and things as may be necessary or proper, as the
case may be required by the provisions of the Pledge and Escrow Agreement, to
assure and confirm to the Trustee the security interest in the Pledged
Securities contemplated hereby, by the Pledge and Escrow Agreement or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Securities secured
hereby, according to the intent and purposes herein expressed. The Company
shall take, or shall cause to be taken, any and all actions reasonably required
(and any action reasonably requested by the Trustee) to cause the Pledge and
Escrow Agreement to create and maintain, as security for the obligations of the
Company under this Indenture and the Securities, valid and enforceable first
priority liens in
- 87 -
and on all the Pledged Securities, in favor of the Trustee, superior to and
prior to the rights of third Persons and subject to no other Liens. The Trustee
shall not be liable for the validity, sufficiency or priority of the funds or
Pledged Securities held under the Pledge and Escrow Agreement or for the
maintenance of the perfection of any funds or securities held therein.
(c) The release of any Pledged Securities pursuant to the Pledge and
Escrow Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge and Escrow
Agreement. To the extent applicable, the Company shall cause TIA Section 314(d)
relating to the release of property or securities from the Lien and security
interest of the Pledge and Escrow Agreement (other than pursuant to Section 9(e)
and 9(g) thereof) and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge and
Escrow Agreement to be complied with. Any certificate or opinion required by
TIA Section 314(d) may be made by an Officer of the Company, except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected by the Company.
(d) The Trustee, in its sole discretion and without the consent of the
Holders, may, and at the request of the Holders of at least 25% in aggregate
principal amount of Securities then outstanding and upon receipt of indemnity
satisfactory to it shall, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the Pledge
and Escrow Agreement and (ii) collect and receive any and all amounts payable in
respect of the obligations of the Company thereunder. The Trustee shall have
power to institute and to maintain such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders in the Pledged Securities (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Trustee).
- 88 -
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a
-------------------------------------------------------
Change of Control.
-----------------
(a) In the event that a Change of Control has occurred, each Holder of
Securities will have the right, at such Holder's option, pursuant to an
irrevocable and unconditional offer by the Company (the "Change of Control
Offer"), to require the Company to repurchase all or any part (equal to $1,000
principal amount or an integral multiple thereof) of such Holder's Securities,
on a date (the "Change of Control Purchase Date") that is no later than 45
Business Days after the occurrence of such Change of Control at a cash price
(the "Change of Control Purchase Price") equal to 101% of the aggregate
principal amount thereof, together with any accrued and unpaid interest to the
Change of Control Purchase Date. The Change of Control Offer shall be made
within 30 Business Days following a Change of Control and shall remain open for
20 Business Days following its commencement (the "Change of Control Offer
Period"). Upon expiration of the Change of Control Offer Period, the Company
shall purchase all Securities properly tendered in response to the Change of
Control Offer.
(b) In the event that, pursuant to this Section 11.1, the Company
shall be required to commence such an offer to purchase Securities (a "Change of
Control Offer"), the Company shall follow the procedures set forth in this
Section 11.1 as follows:
(1) the Company shall provide the Trustee with notice of the Change
of Control Offer at least 5 Business Days before the commencement
of any Change of Control Offer; and
(2) on or before the commencement of any Change of Control Offer, the
Company or the Trustee (upon the request and at the expense of
the Company) shall send, by first-class mail, a notice to each of
the Holders, which (to the extent consistent with this Indenture)
shall govern the terms of the Change of Control Offer and shall
state:
(i) that the Change of Control Offer is being made pursuant to
such notice and this Section 11.1 and that all Securities, or portions
thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the amount
of accrued and unpaid interest), the Change of Control Purchase Date
and the Change of Control Put Date (as defined
- 89 -
below);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing cash with
the Paying Agent in accordance with the last paragraph of this clause
(b) or such payment is prevented, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Change of Control Purchase Date and
(b) the third Business Day following the expiration of the Change of
Control Offer (such earlier date being the "Change of Control Put
Date");
(vi) that Holders will be entitled to withdraw their election,
in whole or in part, if the Paying Agent (which may not for purposes
of this Section 11.1, notwithstanding anything in this Indenture to
the contrary, be the Company or any Affiliate of the Company)
receives, up to the close of business (5:00 p.m. New York Time) on the
Change of Control Put Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount
of the Securities the Holder is withdrawing and a statement that such
Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(vii) a brief description of the events resulting in such Change
of Control.
On or before the Change of Control Purchase Date, the Company will (i)
accept for payment Securities or portions thereof properly tendered and not
properly withdrawn pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent cash sufficient to pay the Change of Control Purchase Price
(together with accrued and unpaid interest) of all Securities so tendered and
- 90 -
(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased by the
Company. The Paying Agent promptly will deliver to the Holders of Securities so
accepted payment in an amount equal to the Change of Control Purchase Price
(together with any accrued and unpaid interest), and the Trustee will promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted will be promptly mailed or delivered by the Company
to the Holder thereof. The Company will announce publicly the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Purchase Date.
Any Change of Control Offer will be made in compliance with all
applicable laws, rules and regulations, including, if applicable, Regulation 14E
under the Exchange Act and the rules thereunder and all other applicable Federal
and state securities laws and the Company may modify a Change of Control Offer
to the extent necessary to effect such compliance.
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 13.2. Notices.
-------
Any notices or other communications to the Company or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company:
American Cellular Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
- 91 -
Attention: Chief Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
if to the Trustee:
Chase Manhattan Bank and Trust Company, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if telecopied; and five Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA ss. 312(c).
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, such Person shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the
- 92 -
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.7. Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or San Francisco, California are authorized
or obligated by law or executive order to close. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the next
- 93 -
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.8. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
SECTION 13.9. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its respective Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse against Others.
--------------------------
No direct or indirect employee, stockholder, director or officer, as
such, past, present or future of the Company, or any successor entity, shall
have any personal liability in respect of the obligations of the Company under
the Securities or this Indenture by reason of his or its status as such
stockholder, employee, director or officer. Each Securityholder by accepting a
Security waives
- 94 -
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 13.11. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.12. Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.13. Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. Table of Contents, Headings, Etc.
---------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. Qualification of Indenture.
--------------------------
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of the Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
- 95 -
SECTION 13.16. Registration Rights.
-------------------
Certain Holders of the Securities are entitled to certain registration
rights with respect to such Securities pursuant to, and subject to the terms of,
the Registration Rights Agreement.
- 96 -
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
AMERICAN CELLULAR
CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK
AND TRUST COMPANY, NATIONAL
ASSOCIATION,
Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
[FORM OF SECURITY]
10 1/2% SERIES [A/B] SENIOR NOTE DUE 2008
No. $______________
CUSIP No.
American Cellular Corporation, a Delaware corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $_____________ Dollars, on May
15, 2008.
Interest Payment Dates: May 15 and November 15;
commencing November 15, 1998.
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-1
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated:
AMERICAN CELLULAR
CORPORATION,
a Delaware corporation
By:
_______________________________
Name:
Title:
By:
_______________________________
Name:
Title:
A-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
CHASE MANHATTAN BANK AND
TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
_______________________________
Authorized Signatory
Dated:
A-3
AMERICAN CELLULAR CORPORATION
10 1/2% Series [A/B] Senior Note due 2008
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation, ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.(1)
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
___________________________
(1) This paragraph should only be added if the Security is issued in global
form.
A-4
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS
AND SALE TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"UNITED STATES," "OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.(2)
1. Interest.
American Cellular Corporation, a Delaware corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate and in the manner specified below. Interest will
accrue at 10 1/2% per annum and will be payable semi-annually in cash on each
May 15 and November 15, commencing November 15, 1998, or if any such day is not
a Business Day on the next succeeding Business Day (each an "Interest Payment
Date") to Holders of record of the Securities at the close of business on the
immediately preceding May 1 or November 1, whether or not a Business Day (each,
a "Record Date").
The Holder of this Series A Security is entitled to the benefits of
the Registration Rights Agreement among the Company and the Initial Purchasers,
____________________________
(2) This Private Placement Legend should appear on the face of any Series A
Securities authenticated and delivered hereunder unless and until (i) an Initial
Security is sold under an effective Registration Statement or (ii) an Initial
Security is exchanged for a Series B Security in connection with an effective
Registration Statement, in each case pursuant to the Registration Rights
Agreement.
A-5
dated May 13, 1998, pursuant to which, subject to the terms and conditions
thereof, the Company is obligated to consummate the Exchange Offer pursuant to
which the Holder of this Security shall have the right to exchange this Security
for 10 1/2% Senior Notes due 2008, Series B (herein called the "Series B
Securities") in like principal amount as provided therein. The Series A
Securities and the Series B Securities are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
In the event that (a) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 60th calendar day following the
Merger Date, (b) the Exchange Offer Registration Statement has not been declared
effective on or prior to the 120th calendar day following the Merger Date or (c)
the Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective, in either case, on or prior to the 150th calendar day
following the Merger Date (each such event referred to in clauses (a) through
(c) above, a "Registration Default"), the interest rate borne by the Series A
Securities shall be increased by one-quarter of one percent per annum upon the
occurrence of each Registration Default, which rate (as increased as aforesaid)
will increase by an additional one quarter of one percent each 90-day period
that such additional interest continues to accrue under any such circumstance,
with an aggregate maximum increase in the interest rate equal to one percent
(1%) per annum. Following the cure of all Registration Defaults the accrual of
additional interest will cease and the interest rate will revert to the original
rate. Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest 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. To the extent lawful, the Company shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Securities; it
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by wire transfer of Federal
funds, or interest by its check payable in such U.S. Legal Tender. The Company
may deliver
A-6
any such interest payment to the Paying Agent or the Company may mail any such
interest payment to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, Chase Manhattan Bank and Trust Company, National
Association (the "Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of May
13, 1998 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act, as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and said Act for
a statement of them. The Securities are general obligations of the Company
limited in aggregate principal amount to $285,000,000.
5. Redemption.
The Securities are subject to redemption at any time on or after May
15, 2003, at the option of the Company, in whole or in part, on not less then 30
nor more than 60 days' prior notice, in amounts of $1,000 or an integral
multiple thereof, at the following redemption prices (expressed as percentages
of the principal amount), if redeemed during the 12 month period beginning May
15 of the years indicated below:
Year Redemption Price
--- ----------------
2003..................................... 105.250%
2004..................................... 103.500%
2005..................................... 101.750%
2006 and thereafter...................... 100.000%
In addition, at any time prior to May 15, 2001, the Company, at its
option, may use the net cash proceeds of one or more Public Equity Offerings or
Strategic Equity Offerings in a single transaction or a series of related
transactions to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under this Indenture at a redemption
price equal to
A-7
110.5% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Redemption Date; provided that at least 65% of
the initial aggregate principal amount of Securities remains outstanding
immediately after the occurrence of such redemption. In order to effect the
foregoing redemption, the Company must mail a notice of redemption no later than
30 days after the closing of the related Public Equity Offering or Strategic
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering or Strategic Equity Offering.
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption on a pro rata basis, by lot, or in
such other manner as it deems appropriate and fair. The Securities may be
redeemed in part in multiples of $1,000 only.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar.
Notice of a Special Mandatory Redemption will be given upon seven
days' prior written notice to the Holders.
Any notice which relates to a Security to be redeemed in part only
must state the portion of the principal amount to be redeemed and must state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities in a principal amount equal to the
unredeemed portion thereof will be issued. On and after the date fixed for
redemption, interest will cease to accrue on the portions of the Securities
called for redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption prior to 15 days after the
notice of redemption.
A-8
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company. After that, all liability of the Trustee and such Paying Agent(s)
with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, U.S. Legal
Tender and Government Securities or a combination thereof, in such amounts as
will be sufficient in the opinion of a nationally recognized firm of independent
public accountants selected by the Trustee, to pay the principal of, premium, if
any, and interest on the Securities to redemption or maturity and comply with
the other provisions of the Indenture relating thereto, the Company will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding their obligation to pay the
principal of and interest on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, pay dividends or make certain other
A-9
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Company must periodically report to the
Trustee on compliance with such limitations.
13. Repurchase at Option of Holder; Special Mandatory Redemption.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with any accrued and unpaid interest, to the Change of Control Purchase
Date. Holders of Securities will receive a Change of Control Offer from the
Company prior to any related Change of Control Purchase Date and may elect to
have such Securities purchased by properly tendering such Securities pursuant to
the Change of Control Offer.
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
(c) If the consummation of the Merger has not occurred on or prior to
the earlier to occur of (i) termination of the Merger Agreement or (ii) 150 days
after the Issue Date if the Escrow Funds have not been released by that time
(provided that the 150-day period may be extended at the option of the Company
up to an additional 120 days if the Extension Condition has been satisfied) the
Company is required to purchase all of the outstanding Securities with the
Escrow Funds, at a redemption price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of redemption.
14. Successors.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
A-10
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. The Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
16. Collateral.
The payment of the Securities will be secured by Pledged Securities
held in an account to secure and fund the first six scheduled interest payments
on the Securities. Once the first six scheduled interest payments are made, the
Securities will be unsecured.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, perform investment advisory
or other management services and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates as if it
were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer or employee, as such, past, present
or future, of the Company or any successor corporation shall have any personal
liability in respect of the obligations of the Company under the Securities or
the Indenture by reason of his or its status as such stockholder, director,
officer or employee. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
A-11
19. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security 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).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in the
Registration Rights Agreement.
A-12
[FORM OF] ASSIGNMENT
I or we assign this Security to
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
_______________________
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: __________ Signed: ______________________________
_______________________________________________________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature(s) must be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities and
Exchange Commission Rule 17Ad-15.
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box:
|_| Section 4.14 |_| Article XI If you want to elect to have only
part of this Security purchased by the Company pursuant to Section 4.14 or
Article XI of the Indenture, as the case may be, state the principal amount you
want to be purchased: $__________
Date: ________________ Signature: ___________________________________
(Sign exactly as your
name appears on the
other side of this Security)
A-14
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(3)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Principal
Amount of Amount of Amount of Signature of
decrease in increase in this Global authorized
Principal Principal Security officer of
Amount of Amount of following such Trustee or
Date of this Global this Global decrease (or Securities
Exchange Security Security increase) Custodian
------------------------------------------------------------------------------------------------
_______________________
(3) This schedule should only be added if the Security is issued in global
form.
A-15
EXHIBIT B
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 2.15(a)(i) of the Indenture)
Chase Manhattan Bank and Trust Company, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10 1/2% Senior Notes due 2008 of American Cellular Corporation
(the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998 (the
"Indenture"), between American Cellular Corporation, a Delaware corporation (the
"Company"), and Chase Manhattan Bank and Trust Company, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to US$____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). ______________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner." The Specified Securities are represented by a Global Security and are
held through the Depositary or an Agent Member in the name of the Undersigned,
as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being effected
in accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
B-1
(1) Rule 904 Transfers. If the transfer is being effected in
------------------
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and
any person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated
by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the
transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
------------------
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
B-2
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
________________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
B-3
EXHIBIT C
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 2.15(a)(ii) of the Indenture)
Chase Manhattan Bank and Trust Company, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10 1/2% Senior Notes due 2008 of American Cellular Corporation
(the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998 (the
"Indenture"), between American Cellular Corporation, a Delaware corporation (the
"Company") and Chase Manhattan Bank and Trust Company, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Rule 144A or Rule
144 under the U.S. Securities Act of 1933 (the "Securities Act") are used herein
as so defined.
This certificate relates to US$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s). If any. __________________
CERTIFICATE No(s). _______________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner." The Specified Securities are represented by a Global Security and are
held through the Depositary or an Agent Member in the name of the Undersigned,
as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
C-1
(1) Rule 144A Transfers. If the transfer is being effected in
-------------------
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
------------------
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
___________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
C-2
EXHIBIT D
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to (S) 2.15(b))
Chase Manhattan Bank and Trust Company, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10 1/2% Senior Notes due 2008 of American Cellular Corporation
(the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998 (the
"Indenture"), between American Cellular Corporation, a Delaware corporation (the
"Company"), and Chase Manhattan Bank and Trust Company, National Association, as
Trustee. Terms used herein and defined in the Indenture or in Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to US$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). ______________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security, they
are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Private Placement Legend pursuant to Section 2.15(b) of
the Indenture. In connection with such exchange, the Owner hereby certifies
that the exchange is occurring after a holding period of at least two years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Company or from an affiliate of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an
D-1
affiliate of the Company. The Owner also acknowledges that any future transfers
of the Specified Securities must comply with all applicable securities laws of
the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
____________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
D-2
EXHIBIT E
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
-----------------------------------------------------------
If to the Company:
Name Telephone Number
---- ----------------
1. ▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
2. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
E-1