EXHIBIT 10.22
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PRICE COMMUNICATIONS WIRELESS, INC.,
Issuer,
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
____________________
INDENTURE
Dated as of July 10, 1997
___________________
$175,000,000
11 3/4% Senior Subordinated Notes due 2007
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................ 1
Section 1.02. Incorporation by Reference of TIA.......................... 25
Section 1.03. Rules of Construction...................................... 25
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating............................................ 26
Section 2.02. Execution and Authentication............................... 26
Section 2.03. Registrar and Paying Agent................................. 27
Section 2.04. Paying Agent to Hold Assets in Trust....................... 28
Section 2.05. Securityholder Lists....................................... 29
Section 2.06. Transfer and Exchange...................................... 29
Section 2.07. Replacement Securities..................................... 36
Section 2.08. Outstanding Securities..................................... 36
Section 2.09. Treasury Securities........................................ 37
Section 2.10. Temporary Securities....................................... 37
Section 2.11. Cancellation............................................... 37
Section 2.12. Defaulted Interest......................................... 38
ARTICLE 3
REDEMPTION
Section 3.01. Redemption................................................. 39
Section 3.02. Notices to Trustee......................................... 40
Section 3.03. Selection of Securities to Be Redeemed..................... 40
Section 3.04. Notice of Redemption....................................... 41
Section 3.05. Effect of Notice of Redemption............................. 42
Section 3.06. Deposit of Redemption Price................................ 42
Section 3.07. Securities Redeemed in Part................................ 43
ARTICLE 4
COVENANTS
Section 4.01. Transactions Not Subject to Covenants...................... 43
Section 4.02. Payment of Securities...................................... 45
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Section 4.03. Maintenance of Office or Agency............................ 45
Section 4.04. Limitation on Restricted Payments.......................... 46
Section 4.05. Corporate Existence........................................ 47
Section 4.06. Payment of Taxes and Other Claims.......................... 47
Section 4.07. Maintenance of Properties and Insurance.................... 48
Section 4.08. Compliance Certificate; Notice of Default.................. 48
Section 4.09. Reports.................................................... 49
Section 4.10. Limitation on Status as Investment Company................. 49
Section 4.11. Limitation on Transactions with Related Persons............ 49
Section 4.12. Limitation on Incurrence of Additional Indebtedness........ 50
Section 4.13. Limitations on Restricting Subsidiary Dividends............ 52
Section 4.14. Limitations on Layering of Indebtedness; Liens............. 53
Section 4.15. Limitation on Asset Sales and Sales of Subsidiary Stock.... 54
Section 4.16. Waiver of Stay, Extension or Usury Laws.................... 60
Section 4.17. Rule 144A Information Requirement.......................... 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. Deposit of Proceeds with Trustee Pending Consummation
of the Merger....................................................... 61
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Merger, Sale or Consolidation................ 62
Section 5.02. Successor Corporation Substituted.......................... 63
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.01. Events of Default.......................................... 63
Section 6.02. Acceleration of Maturity Date; Rescission and Annulment.... 65
Section 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee............................................................. 67
Section 6.04. Trustee May File Proofs of Claim........................... 67
Section 6.05. Trustee May Enforce Claims Without Possession of
Securities.......................................................... 68
Section 6.06. Priorities................................................. 69
Section 6.07. Limitation on Suits........................................ 69
Section 6.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 70
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Section 6.09. 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 7
TRUSTEE
Section 7.01. Duties of Trustee.......................................... 72
Section 7.02. Rights of Trustee.......................................... 73
Section 7.03. Individual Rights of Trustee............................... 75
Section 7.04. Trustee's Disclaimer....................................... 75
Section 7.05. Notice of Default.......................................... 75
Section 7.06. Reports by Trustee to Holders.............................. 75
Section 7.07. Compensation and Indemnity................................. 75
Section 7.08. Replacement of Trustee..................................... 77
Section 7.09. Successor Trustee by Merger, Etc........................... 78
Section 7.10. Eligibility; Disqualification.............................. 78
Section 7.11. Preferential Collection of Claims Against Company.......... 78
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.......................................................... 78
Section 8.02. Legal Defeasance and Discharge............................. 78
Section 8.03. Covenant Defeasance........................................ 79
Section 8.04. Conditions to Legal or Covenant Defeasance................. 79
Section 8.05. Deposited U.S. Legal Tender Equivalents and U.S.
Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.......................................................... 81
Section 8.06. Repayment to the Company................................... 81
Section 8.07. Reinstatement.............................................. 82
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Supplemental Indentures Without Consent of Holders......... 82
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Section 9.02. Amendments, Supplemental Indentures and Waivers with
Consent of Holders.................................................. 83
Section 9.03. Compliance with TIA....................................... 85
Section 9.04. Revocation and Effect of Consents......................... 85
Section 9.05. Notation on or Exchange of Securities..................... 86
Section 9.06. Trustee to Sign Amendments, Etc........................... 86
ARTICLE 10
COLLATERAL ACCOUNT AND RELEASES
Section 10.01. Collateral Account........................................ 86
Section 10.02. Eligible Investments...................................... 87
Section 10.03. Release of Collateral..................................... 88
ARTICLE 11
RIGHT TO REQUIRE REPURCHASE
Section 11.01. Repurchase of Securities at Option of the Holder Upon a
Change of Control................................................... 88
ARTICLE 12
SUBORDINATION
Section 12.01. Securities Subordinated to Senior Indebtedness............ 91
Section 12.02. No Payment on Securities in Certain Circumstances......... 92
Section 12.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.......... 94
Section 12.04. Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness................................................. 95
Section 12.05. Obligations of the Company Unconditional.................. 96
Section 12.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice................................................... 96
Section 12.07. Application by Trustee of Assets Deposited with It........ 97
Section 12.08. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.................... 97
Section 12.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities......................................... 97
Section 12.10. Right of Trustee to Hold Senior Indebtedness.............. 98
Section 12.11. Article Not to Prevent Events of Default................. 98
Section 12.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness........................................................ 98
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ARTICLE 13
MISCELLANEOUS
Section 13.01. TIA Controls............................................... 99
Section 13.02. Notices.................................................... 99
Section 13.03. Communications by Holders with Other Holders............... 100
Section 13.04. Certificate and Opinion as to Conditions Precedent......... 100
Section 13.05. Statements Required in Certificate or Opinion.............. 100
Section 13.06. Rules by Trustee, Paying Agent, Registrar.................. 101
Section 13.07. Legal Holidays............................................. 101
Section 13.08. Governing Law.............................................. 101
Section 13.09. No Adverse Interpretation of Other Agreements.............. 102
Section 13.10. No Recourse Against Others................................. 102
Section 13.11. Successors................................................. 102
Section 13.12. Duplicate Originals........................................ 102
Section 13.13. Severability............................................... 102
Section 13.14. Table of Contents, Headings, Etc........................... 103
Section 13.15. Qualification of Indenture................................. 103
Section 13.16. Registration Rights........................................ 103
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INDENTURE, dated as of July 10, 1997 between Price Communications Wireless,
Inc., a Delaware corporation (the "COMPANY") and Bank of Montreal Trust Company,
a New York banking corporation (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 11 3/4% Series
A Senior Subordinated Notes due 2007 and the 11 3/4% Series B Senior
Subordinated Notes due 2007 which may be exchanged for the 11 3/4% Series A
Senior Subordinated Notes due 2007:
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.02.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section 4.15.
"ACCUMULATED AMOUNT" shall have the meaning specified in Section 4.15.
"ACQUIRED PERSON" shall have the meaning as set forth in the definition
of "PERMITTED INVESTMENT."
"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 of such Person for the Reference Period
multiplied by four.
"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)
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.
"ASSET SALE" shall have the meaning specified in Section 4.15.
"ASSET SALE OFFER" shall have the meaning specified in Section 4.15.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section
4.15.
"ASSET SALE OFFER PRICE" shall have the meaning specified in Section
4.15.
"ASSET SALE PURCHASE DATE" shall have the meaning specified in Section
4.15.
"BANK" shall have the meaning specified in Section 10.01.
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"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.
"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.
"CHANGE OF CONTROL" means (i) any sale, transfer or other conveyance,
whether direct or indirect, of a majority of the fair market value of the assets
of the
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Company or Parent, 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 more than 50% of the total equity 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 more than 50% of the total equity in the aggregate of all classes
of Capital Stock of the Company or Parent 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 or Parent
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Company or Parent 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 or Parent then in office.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in Section
1101.
"CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified in
Section 11.01.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified in
Section 11.01.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified in
Section 11.01.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.01.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means all cash and Treasury Bills, and any proceeds
thereof, which are from time to time held in the Collateral Account.
4
"COLLATERAL ACCOUNT" means the trust account created and maintained
pursuant to Section 10.01.
"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 SYSTEMS" shall have the meaning specified in Section 4.15.
"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
Swap and Hedging Obligations, in each case to the extent attributable to such
period, and (b) the amount of dividends accrued or payable by such Person or any
of its consolidated 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 and losses and gains and
losses that are nonrecurring (including as a result of Asset Sales outside the
ordinary course of business), (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
5
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 and (iv) 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. 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.
"CONTIGUOUS" means, when used in connection with any existing RSA or
MSA of the Company or its Subsidiaries, a wireless cellular communications
system, any part of which exists within 50 miles of such RSA or MSA.
"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 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.03.
"CREDIT AGREEMENT" means a credit agreement entered into by the Company
and a syndicate of banks, financial institutions and other "accredited
investors" (as defined in Regulation D under the Securities Act); led by
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, as arranger, and DLJ
Capital Funding, as syndication agent, or any other senior loan facility
syndicated by DLJ Capital Funding in lieu thereof, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time (including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring or adding Restricted Subsidiaries of the
Issuer as additional borrowers or guarantors thereunder) and all or any portion
of the Indebtedness under such agreement or any successor or replacement
agreement whether by the same or any other agent, lender or group of lenders.
There can only be one such credit facility or loan agreement designated to be
the "CREDIT AGREEMENT" at any one time. Any Indebtedness Incurred pursuant to
the second paragraph of Section
6
4.12 may be Incurred pursuant to the terms of the Credit Agreement, provided
that such Indebtedness so Incurred shall be deemed to have been Incurred
pursuant to the Credit Agreement for all purposes of the Indenture other than
with respect to Section 4.12 and clause (3) of the first paragraph of Section
4.15.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect against
fluctuation in currency values.
"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.
"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.
"DEPOSITORY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.03 as the
Depository 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, "Depository" shall mean or include such successor.
"DESIGNATED SENIOR INDEBTEDNESS" means, so long as it is in effect, the
Credit Agreement and, thereafter, any Senior Indebtedness designated by the
Company to be "DESIGNATED SENIOR INDEBTEDNESS."
"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 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 Company or Parent.
"ELIGIBLE INVESTMENTS" mean United States Treasury Bills maturing no
later than the Business Day preceding December 31, 1997.
7
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCHANGED CAPITAL STOCK" shall have the meaning specified in Section
4.15.
"EXCHANGE SECURITIES" means the 11 3/4% Series B Senior Subordinated
Notes due 2007 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 or Parent
"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 members of the Price Family who owned Capital
Stock of Parent on the Issue Date and any Affiliate of any of the foregoing that
is wholly owned by one of the foregoing.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries in existence and outstanding on the Issue Date.
"FINAL PUT DATE" shall have the meaning specified in Section 415.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board ("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.
8
"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.
"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.
"HOLDINGS" means Price Communications Cellular Holdings, Inc., the
direct parent of the Company, and a subsidiary of Price Communications
Corporation.
"HOLDINGS SECURITIES" means preferred stock or debt securities issued
by Holdings prior to the Merger.
"INCUR" shall have the meaning specified in Section 4.12.
"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 not 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 Swap and Hedging
Obligations; (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 Subsidiaries; and (e) any and all deferrals, renewals,
extensions, refinancing and 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), or (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
9
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 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc., NatWest Capital Markets
Limited, ▇▇▇▇▇▇ Brothers Inc. and PaineWebber Incorporated.
"INITIAL SECURITIES" means the 11 3/4% Series A Senior Subordinated
Notes due 2007, 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 SWAP AND HEDGING OBLIGATIONS" means any obligations of any
Person pursuant to any interest rate swaps, caps, collars and similar
arrangements providing protection against fluctuations in interest rates. For
purposes of this Agreement, 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 or 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) 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
10
designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.04, (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.
"JUNIOR SECURITIES" of any Person means securities (including Capital
Stock but excluding Disqualified Capital Stock) issued by such Person to a
Holder on account of the Securities that (i) has a Weighted Average Life and
maturity or mandatory redemption obligation, if any, longer than, or occurring
after the final maturity date of, all Designated Senior Indebtedness of such
Person outstanding on the date of issuance of such Junior Securities, (ii by
their terms or by law are subordinated to Designated Senior Indebtedness of such
Person outstanding on the date of issuance of such Junior Securities at least to
the same extent as the Securities and (ii are not secured by any assets or
property of the Company or any of its Subsidiaries. As used herein, "Designated
Senior Indebtedness of such Person outstanding on the date of issuance of such
Junior Securities" shall include securities issued in connection with a
reorganization pursuant to the bankruptcy laws of any jurisdiction to Persons
which held "Designated Senior Indebtedness" in such reorganization proceeding.
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.02.
"LEGAL HOLIDAY" shall have the meaning specified in Section 13.07.
"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
11
agreement and any lease deemed to constitute a security interest and any option
or other agreement to give any security interest).
"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 the Company with and into ▇▇▇▇▇▇ pursuant
to the Merger Agreement.
"MERGER AGREEMENT" means the agreement and plan of merger dated as of
May 23, 1997, among PCC, the Company and ▇▇▇▇▇▇.
"MERGER DATE" means the time and date of the consummation of the
Merger.
"MSA" shall have the meaning specified in the definition of "POPS."
"MINIMUM ACCUMULATION DATE" shall have the meaning specified in Section
4.15.
"NET OFFERING PROCEEDS" shall have the meaning specified in Section
4.20.
"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 on the property or assets of the Company or any of its Restricted
Subsidiaries, as the case may be.
12
"NET POPS" of any Person with respect to any cellular telephone system
means the Pops of the MSA or RSA served by such system multiplied by the direct
and/or indirect percentage interest of such Person in the entity licensed or
designated to receive an authorization by the Federal Communications Commission
to construct or operate a system in that MSA or RSA.
"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-RECOURSE RESTRICTED SUBSIDIARY" shall have the meaning specified
in the definition of "PERMITTED ACQUISITION INDEBTEDNESS."
"NOTICE OF DEFAULT" shall have the meaning specified in Section 6.01.
"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 MEMORANDUM" means that certain Offering Memorandum of the
Company, dated July 2, 1997 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 or the
Parent, a certificate signed by two Officers or by an Officer and an Assistant
Secretary of the Company or the Parent, respectively, and otherwise complying
with the requirements of Sections 13.04 and 13.05.
"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
13
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
13.04 and 13.05.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Wireless, Inc., a Delaware corporation.
"PARENT" shall mean PCC or any directly or indirectly wholly owned
subsidiary of PCC that directly or indirectly wholly owns the Company until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"PAYING AGENT" shall have the meaning specified in Section 2.03.
"PAYMENT BLOCKAGE PERIOD" shall have the meaning specified in Section
12.02.
"PAYMENT DEFAULT" shall have the meaning specified in Section 12.02.
"PAYMENT NOTICE" shall have the meaning specified in Section 12.02.
"PCC" means Price Communications Corporation, a New York corporation.
"PCC EQUITY CONTRIBUTION" means the $128.3 million equity contribution
from PCC or a Subsidiary of PCC which is a Parent of the Company in the form of
cash or common stock of ▇▇▇▇▇▇ to the Company in accordance with the terms
thereof described in the Offering Memorandum.
"PERMITTED ACQUISITION INDEBTEDNESS" means, with respect to any Person,
Indebtedness Incurred in connection with the acquisition of property,
14
businesses or assets which, or Capital Stock of a Person all or substantially
all of whose assets, are of a type generally used in a Related Business;
provided that, in the case of the Company or its Restricted Subsidiaries, as
applicable, (x)(i) the Company's Annualized Operating Cash Flow Ratio, after
giving effect to such acquisition and such Incurrence on a pro forma basis, is
no greater than such ratio prior to giving pro forma effect to such acquisition
and such Incurrence, (ii) the Company's consolidated Senior Indebtedness,
divided by the Net Pops of the Company and its Restricted Subsidiaries, in each
case giving pro forma effect to the acquisition and such Incurrence, does not
exceed $120, (iii) the Company's consolidated Indebtedness divided by the Net
Pops of the Company and its Restricted Subsidiaries does not exceed $160 as a
result of the acquisition and such Incurrence and (iv) after giving effect to
such acquisition and such Incurrence the acquired property, businesses or assets
or such Capital Stock is owned directly by the Company or a Wholly Owned
Restricted Subsidiary of the Company, or (y)(i) under the terms of such
Indebtedness and pursuant to applicable law, no recourse could be had for the
payment of principal, interest or premium with respect to such Indebtedness or
for any claim based thereon against the Company or any Person that constituted a
Restricted Subsidiary immediately prior to the consummation of such acquisition
or any of their property or assets, (ii) the obligor of such Indebtedness shall
have, immediately after giving effect to such acquisition and such Incurrence on
a pro forma basis, a ratio of Annualized Operating Cash Flow as of the date of
the acquisition to the product of Consolidated Interest Expense for the
Reference Period multiplied by four (but excluding from Consolidated Interest
Expense all amounts that are not required to be paid in cash on a current basis)
of at least 1 to 1 and (iii) immediately subsequent to the Incurrence of such
Indebtedness, the obligor thereof shall be a Restricted Subsidiary and shall
have been designated by the Company (as evidenced by an Officers' Certificate
delivered promptly to the Trustee) to be a "Non-Recourse Restricted Subsidiary."
"PERMITTED INVESTMENT" means (i) Investments in Cash Equivalents; (ii)
Investments in the Company or a Restricted Subsidiary (other than a Non-Recourse
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 (other than a Non-Recourse 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 (other than a Non-Recourse Restricted Subsidiary) and the surviving
Person is the Company or a Restricted Subsidiary (other than a Non-Recourse
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 (other than a Non-Recourse Restricted Subsidiary); (iv) Investments
in accounts and notes
15
receivable acquired in the ordinary course of business; (v) any securities
received in connection with an Asset Sale (other than those of a Non-Recourse
Restricted Subsidiary) 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
4.15; (vi) any guarantee issued by a Restricted Subsidiary in respect of Senior
Indebtedness 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) Investments in Non-
Recourse Restricted Subsidiaries with the proceeds of contributions irrevocably
and unconditionally received without restriction by the Company from Parent; and
(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
Subsidiaries for travel, entertainment, and moving and other relocation
expenses.
"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
Permitted Acquisition Indebtedness, which either (A) were not incurred or issued
in anticipation of such acquisition or (B) secure Permitted Acquisition
Indebtedness meeting the requirements set forth in clause (y) of the definition
thereof; (j) Liens securing Senior Indebtedness that
16
was incurred in accordance with Section 4.12; (k) Liens securing Indebtedness of
a Person existing at the time such Person becomes a Restricted 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; (l) Liens arising from Purchase Money Indebtedness permitted
under the Indenture; (m) 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; 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.
"POPS" means the estimate of the population of a Metropolitan Statistical
Area ("MSA") or Rural Service Area ("RSA") as derived from the most recent
▇▇▇▇▇▇▇▇ Market Service or if such statistics are no longer printed in the
▇▇▇▇▇▇▇▇ Market Service or the ▇▇▇▇▇▇▇▇ Market Service is no longer published,
the most recent Rand ▇▇▇▇▇▇▇ Commercial Atlas or if such statistics are no
longer printed in the Rand ▇▇▇▇▇▇▇ Commercial Atlas or the Rand ▇▇▇▇▇▇▇
Commercial Atlas is no longer published, such other nationally recognized source
of such information.
"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.
"PRICE FAMILY" means ▇▇▇▇▇▇ ▇▇▇▇▇, an individual, and members of his family
who, as of the Issue Date, beneficially owned Capital Stock of Parent.
"PRINCIPAL" of any Indebtedness means the principal of such Indebtedness
plus, without duplication, applicable premium, if any, on such Indebtedness.
"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.
"PURCHASE AGREEMENT" means that certain Purchase Agreement dated July 3,
1997 by and among the Company, PCC and the Initial Purchasers, as such agreement
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
17
"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 (including the Special Redemption Date)
pursuant to Article 3 of this Indenture and Paragraph 5 in the form of
Security.
"REDEMPTION PRICE," when used with respect to any Security to be redeemed,
means the redemption price for such redemption pursuant to Article 3 of this
Indenture and Paragraph 5 in the form of Security, 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 full fiscal
quarter 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
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 Indebtedness or Disqualified Capital Stock
(a) issued in exchange for, or the proceeds from the issuance and sale of which
are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the case
of Disqualified Capital Stock, liquidation preference (or, if such Indebtedness
or Disqualified Capital Stock does not require cash payments prior to maturity
or is otherwise issued at a discount, the original issue price of such
Indebtedness or Disqualified Capital Stock), not to exceed the sum of (x) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such
18
Indebtedness being Refinanced was issued with an original issue discount, the
accreted value thereof (as determined in accordance with GAAP) at the time of
such Refinancing, (y) the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of such Indebtedness and
(z) all other customary fees and expenses of the Company or such Restricted
Subsidiary reasonably incurred in connection with such refinancing; provided
that (A) Refinancing Indebtedness issued by any Restricted Subsidiary of the
Company shall only be used to Refinance outstanding Indebtedness or Disqualified
Capital Stock of such Restricted Subsidiary, (B) Refinancing Indebtedness shall
(x) not have a Weighted Average Life shorter than the Indebtedness or
Disqualified Capital Stock to be so refinanced at the time of such Refinancing
and (y) in all respects, be no less subordinated or junior, if applicable, to
the rights of Holders of the Securities than was the Indebtedness or
Disqualified Capital Stock to be refinanced and (C) such Refinancing
Indebtedness shall have no installments of principal (or redemption payment)
scheduled to come due earlier than the scheduled maturity of any installment of
principal (or redemption payment) of the Indebtedness or Disqualified Capital
Stock to be so refinanced which was scheduled to come due prior to the Stated
Maturity of the Securities.
"REGISTRAR" shall have the meaning specified in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated July 10, 1997 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.
"RELATED BUSINESS" means any business directly related to the ownership,
development, operation, and acquisition of wireless cellular communications
systems.
"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, its Parent, or any
Subsidiary of such Person by 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
19
or in part, of any shares of Capital Stock of such Person, its Parent 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, or ranks
pari passu (other than the Securities) with, 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) the purchase, redemption or other acquisition or retirement for value of
shares of Capital Stock of any Restricted Subsidiary (other than Non-Recourse
Restricted Subsidiaries) held by Persons other than the Company or any of its
Restricted Subsidiaries, (iv) payments to satisfy obligations to pay statutory
appraisal rights resulting from the Merger and any settlement in respect thereof
to security holders of ▇▇▇▇▇▇, (v) fees and expenses incurred in connection with
the Merger and (vi) cash payments in respect of purchases of options and rights
for shares of ▇▇▇▇▇▇ common stock issued pursuant to ▇▇▇▇▇▇'▇ 1995 Stock Option
Plan, 1995 Directors' Stock Option Plan, 1995 Employee Stock Purchase Plan and
1995 Non-Employee Director Stock Purchase Plan.
"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) 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
20
Cash Flow Ratio test of Section 4.12, on a pro forma basis, taking into account
such designation.
"RSA" shall have the meaning specified in the definition of "Pops."
----
"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 for the Depositary
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 Agreement, all Obligations) including interest
thereon, whether outstanding on the Issue Date or thereafter issued, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Securities.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include (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
(other than Purchase Money Indebtedness constituting at least 75% but not more
than 100% of the cost of wireless cellular communication system equipment and
other related fixed assets, Incurred in compliance with Section 4.12), (e) trade
payables and (f) Indebtedness to the extent incurred in violation of the
Indenture.
"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" shall have the meaning specified in Section 3.01.
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"SPECIAL REDEMPTION AMOUNT" shall have the meaning specified in Section
4.20.
"SPECIAL REDEMPTION DATE" shall have the meaning specified in Section 3.01.
"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.
"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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
77bbbb) as in effect on the date of the execution of this Indenture.
"TRANSFER RESTRICTED SECURITIES" means Securities that bear or are required
to bear the legend set forth in Section 2.06 hereof.
"TREASURY BILLS" means (a) book-entry United States Treasury bills (i) held
in a Participant's Securities Account (as defined in 31 C.F.R. (S)357.2) with
the Federal Reserve Bank of New York pursuant to the Treasury/Reserve Automated
Debt Entry System and (ii) maturing no later than the Business Day preceding
December 31, 1997 and (b) securities entitlements in respect of United States
Treasury bills referred to in (a) above.
"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.
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"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, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"UNRESTRICTED SUBSIDIARY" shall mean any Subsidiary of the Company that, at
the time of determination, shall be an Unrestricted Subsidiary (as 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 pursuant to
Section 4.04. 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. GOVERNMENT OBLIGATIONS" means direct non-callable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"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.
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"WEIGHTED AVERAGE LIFE" means, as of the date of determination, with
respect to any debt instrument, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such debt instrument
multiplied by the amount of each such respective principal payment by (ii) the
sum of all such principal payments.
"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 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 1.02. 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 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
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(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;
(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 2
The Securities
Section 2.01. 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.
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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 2.02. Execution and Authentication. Each Security shall be signed
by at least one Officer for the Company by manual or facsimile signature. The
Company's seal may 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
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 $175,000,000 and shall authenticate Exchange
Securities for original issue in the aggregate principal amount of up to
$175,000,000, 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
$175,000,000, except as provided in Section 2.07. 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.
26
Securities shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
Section 2.03. 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 3, 8, 10, 11, Section
4.15 and as otherwise specified in the Indenture, 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 Depository with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities Custodian
with respect to the Global Securities.
Section 2.04. 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 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
27
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 2.05. 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 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 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar or a co-Registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction are
met; provided, however, that the Definitive Securities surrendered for transfer
or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar
or co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Securities are being delivered
to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in substantially the form set forth on the reverse of the
Security); or
28
(B) if such Transfer Restricted Security is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities
Act, a certification to that effect (in substantially the form set
forth on the reverse of the Security); or
(C) if such Transfer Restricted Security is being transferred
pursuant to any exemption from registration in accordance with
Regulation S under the Securities Act, a certification to that effect
(in substantially the form set forth on the reverse of the Security);
or
(D) if such Transfer Restricted Security is being transferred
to an institutional investor that is an "accredited investor" within
the meaning of Rule 501(a)(1),(2),(3) or (7) under the Securities Act
which delivers a certificate in the form of Exhibit B to the Indenture
to the Trustee; or
(E) if such Transfer Restricted Security is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect (in substantially
the form set forth on the reverse of the Security) accompanied by a
customary opinion of counsel substantially to the effect that such
transfer may be effected in reliance upon such exemption.
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted Security,
certification, substantially in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer Restricted
Security, written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an endorsement on the Global
29
Security to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected through
the Depository, in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Upon receipt by the Trustee of written instructions or such other form
of instructions as is customary for the Depository from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written order or such other form
of instructions as is customary for the Depository or the Person designated by
the Depository as having such a beneficial interest in a Transfer Restricted
Security only, the following additional information and documents (all of which
may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification from such person to that effect (in substantially the
form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act,
a certification to that effect from the transferor (in substantially
the form set forth on the reverse of the Security); or
(C) if such beneficial interest is being transferred pursuant to
any exemption from registration in accordance with Regulation S under
the Securities Act, a certification to that effect (in substantially
the form set forth on the reverse of the Security); or
30
under the Securities Act, a certification to that effect (in
substantially the form set forth on the reverse of the Security); or
(D) if such Transfer Restricted Security is being transferred to
an institutional investor that is an "accredited investor" within the
meaning of Rule 5.01(a)(1), (2), (3) or (7) under the Securities Act
which delivers a certificate in the form of Exhibit B to the Indenture
to the Trustee; or
(E) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferee or
transferor (in substantially the form set forth on the reverse of the
Security) accompanied by a customary opinion of counsel substantially
to the effect that such transfer may be effected in reliance upon such
exemption,
then the Trustee or the Securities Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate, the Trustee will authenticate and deliver to the
transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.06 shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Securities in Absence of Depository. If
at any time:
31
(i) the Depository for the Securities notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global
Securities and a successor Depository for the Global Securities is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee in
writing that they elect to cause the issuance of Definitive Securities
under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will authenticate and deliver Definitive Securities, in an aggregate principal
amount equal to the principal amount of the Global Securities, in exchange for
such Global Securities.
(g) Legends
(i) Except as permitted by the following paragraph (ii), each
Security certificate evidencing the Global Securities and the Definitive
Securities (and all Securities issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), OR (B) IT IS NOT A U.S. PERSON, IS NOT
ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO
32
UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE
144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE, AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) AND, IN
EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS,
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATIONS UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER A TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Act or an effective registration
statement under the Act:
33
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security in
the case of a Rule 144 Transfer, after delivery of a customary opinion
of counsel; and
(B) any such Transfer Restricted Security represented by a
Global Security shall not be subject to the provisions set forth in
(i) above (such sales or transfers being subject only to the
provisions of Section 2.06 hereof); provided, however, that with
respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Security for a Definitive
Security that does not bear a legend, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing
(to be accompanied by a customary opinion of counsel) to the Registrar
that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form set forth on the reverse
of the Security).
(h) Cancellation and/or Adjustment of Global Security. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, such Global Security
shall be returned to or retained and cancelled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the Trustee
or the Securities Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) Obligations with respect to Transfers and Exchanges of Definitive
Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's or co-Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes,
34
assessments, or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.02 (fourth paragraph), 2.10, 3.07, 4.15(8),
905, or 1101 (final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of (a) any Definitive Security selected for
redemption in whole or in part pursuant to Article 3, except the
unredeemed portion of any Definitive Security being redeemed in part, or
(b) any Security for a period beginning 15 Business Days before the mailing
of a notice of an offer to repurchase pursuant to Article 11 or Section
4.15 hereof or the mailing of a notice of redemption of Securities pursuant
to Article 3 hereof and ending at the close of business on the day of such
mailing.
SECTION 2.07. 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 2.08. 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 cancelled 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 2.08 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 2.09.
If a Security is replaced pursuant to Section 2.07 (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 2.07.
35
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
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 2.09. 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 2.07, 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 cancelled 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.
36
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).
37
(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.
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 shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
ARTICLE 3
Redemption
SECTION 3.01. Redemption.
(a) Right of Redemption. Redemption of Securities, as permitted by any
provision of this Indenture, shall be made in accordance with such provision and
this Article 3. The Company will not have the right to redeem any Securities
prior to July 15, 2002. On or after July 15, 2002, the Company will have the
right to redeem all or any part of the Securities at the Redemption Prices
specified in the form of Security attached as Exhibit A set forth therein under
the caption "Redemption," in each case, including accrued and unpaid interest,
if any, to the applicable Redemption Date (subject to the right of Holders of
record on the relevant regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
Notwithstanding the foregoing paragraph (a), prior to July 10, 2002, in the
event that the Company or Parent consummates one or more offerings of their
Qualified Capital Stock on or before the third anniversary of the date of the
issuance of the Securities, the Company may at its option, use all or a portion
of the cash contributed to it from such offerings to redeem up to 35% of the
original aggregate principal amount of the Securities at a cash redemption price
equal to 111.75% of the principal amount of the Securities plus accrued and
unpaid interest thereon, if any, to the redemption date; provided that at least
65% of the original aggregate principal amount of the Securities remains
outstanding thereafter.
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(b) Special Redemption. Notwithstanding paragraph (a) of this section, if
(i) the Merger is not consummated on or before December 31, 1997 or (ii) if it
appears, in the sole judgment of the Company evidenced by a Board Resolution,
that the Merger will not be consummated by December 31, 1997, the Company shall
redeem the Securities (the "SPECIAL REDEMPTION") on, or at any time prior to,
December 31, 1997 at a redemption price of 101% of the principal amount of the
Securities plus accrued interest to the date of the Special Redemption (the
"SPECIAL REDEMPTION DATE").
SECTION 3.02. Notices to Trustee. If the Company elects or is required to
redeem Securities pursuant to Paragraph 5 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
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 3.02 with respect to any optional redemption pursuant to Section 3.01(a)
at least 45 days before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee). Any such notice may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be
void and of no effect.
SECTION 3.03. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to Para
graph 5(a) thereof, the Trustee shall select the Securities to be redeemed on a
pro rata basis, by lot, or by such other method 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
39
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 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date other
than the Special Redemption Date, 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. In the event of the Special Redemption,
the Company shall mail by first class mail, postage prepaid, a notice of
redemption to the Trustee and each Holder at least 5 Business Days before the
Special Redemption Date. 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:
(a) the Redemption Date;
(b) the Redemption Price, including the amount of accrued and unpaid
interest, if any, to be paid upon such redemption;
(c) the name, address and telephone number of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the Redemption
Price;
(e) that, unless (i) with respect to a redemption pursuant to Paragraph
5(a) of the Securities, the Company defaults in its obligation to deposit cash
with the Paying Agent in accordance with Section 3.06 hereof or (ii) such
redemption payment is prohibited pursuant to Article 12 hereof or other laws,
the 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, as the
case may be, 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;
(f) 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 unre deemed portion thereof will be issued;
40
(g) 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;
(h) the CUSIP number of the Securities to be redeemed; and
(i) that the notice is being sent pursuant to this Section 3.04 and
pursuant to the optional redemption provisions of Paragraph 5(a) of the
Securities or the special redemption provisions of Paragraph 5(b) of the
Securities, as the case may be.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.04,
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, if any. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price,
including interest, if 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 3.06. Deposit of Redemption Price. On or prior to any Redemption
Date, other than a Special 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 upon the written request of the Company.
One Business Day prior to the Special Redemption Date, the Trustee shall
withdraw Treasury Bills and proceeds from the Collateral Account, sell such
Treasury Bills and deliver to the Paying Agent on behalf of the Company an
amount equal to the Redemption Price, and the Paying Agent shall on behalf of
the
41
Company apply that amount to redeem the Securities on the Special Redemption
Date as provided by Section 3.01.
If the Company complies with the preceding paragraph and the other
provisions of this Article 3 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 4.02 hereof and the Securities.
Section 3.07. 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.
ARTICLE 4
Covenants
SECTION 4.01. Transactions Not Subject to Covenants. Notwithstanding
anything to the contrary in this Indenture, the following transactions shall not
be prohibited by this Indenture (regardless of the form or substance of the
transaction or series of transactions effecting the same):
(a) the Merger, including, without limitation, (i) payments made by the
Company to fund (x) the cash consideration payable in the Merger (including,
whether or not required by the Merger Agreement, pursuant to statutory appraisal
rights and any settlement thereof) to security holders of ▇▇▇▇▇▇ and (y) fees
and expenses of the Company incurred in connection with the Merger, (ii the
Incurrence, as a result of the Merger, of any Indebtedness of ▇▇▇▇▇▇ or any
subsidiary of ▇▇▇▇▇▇, which Indebtedness was in existence immediately prior to
the Merger and not incurred in contemplation thereof, (ii the assumption or the
suffering to exist of any consensual encumbrance or restriction on the ability
of ▇▇▇▇▇▇ or any Subsidiary thereof to pay dividends or make other distributions
on the Capital Stock of any Subsidiary or to pay or satisfy any obligation to
▇▇▇▇▇▇ or
42
any of its Subsidiaries or to otherwise transfer assets or make or pay
loans or advances to ▇▇▇▇▇▇ or any of its Subsidiaries, which encumbrance or
restriction was contained in an instrument that was in effect immediately prior
to the Merger and not put into place in contemplation thereof and (iv the
Incurrence or the suffering to exist of any Lien upon any of the property or
assets of ▇▇▇▇▇▇ or any of its Subsidiaries which Liens were in existence
immediately prior to the effectiveness of the Merger and not imposed in
contemplation thereof; and
(b) any transaction involving FMT Ltd. or any subsidiary of FMT Ltd. or
any of their assets or the Company's partnership interest in FMT Ltd. (each
"FMT-RELATED ASSETS") provided that, in the case of this clause (b), no such
transaction shall (i) in and of itself cause or result in an increase in the
consolidated Indebtedness of the Company and its Restricted Subsidiaries on and
after the 45th day after the Merger Date from that existing immediately prior to
such transaction, (ii cause or result in the sale of any asset of the Company
other than FMT-Related Assets, (ii cause or result in the imposition of any Lien
on any property or assets of the Company or any of its Restricted Subsidiaries
other than solely upon an FMT-Related Asset, (iv cause or result in the
imposition of any encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company (other than FMT Ltd. or any Subsidiary thereof) 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, (v) cause or
result in any dividend or distribution by the Company or any Investment in any
Person except a Restricted Subsidiary or a Subsidiary of FMT Ltd., (vi cause or
result in the Incurrence of any Indebtedness of the Company ranking senior to
the Notes but junior to any Senior Indebtedness; provided, however, that prior
to the 45th day after the Merger Date the Company's consolidated Indebtedness
may increase as a result of such transaction by no more than $169 million (plus
accrued interest thereon). Notwithstanding the foregoing provisions of this
Section 4.01, neither the Company nor any of its Restricted Subsidiaries (other
than FMT Ltd. or any of its Subsidiaries) shall make any Investment in FMT Ltd.
or any of its Subsidiaries. In addition, the Merger shall not constitute a
Change of Control and no transaction described in Section 4.01(b) shall be taken
into account in any calculation under Section 4.04.
SECTION 4.02. 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 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.
43
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.03. 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 13.02.
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 as such
office.
SECTION 4.04. Limitation on Restricted Payments. The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly after the Issue Date, 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's Annualized Operating Cash Flow Ratio for the Reference
Period would exceed 8.5 to 1, 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, as determined in good faith by the Board of
Directors) 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 (ii) the aggregate Net Proceeds
(other than with respect to the PCC
44
Equity Contribution) 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, plus (iii) to the extent
not otherwise included in clause (i) or (ii), above, an amount equal to the net
reduction in Investments in Unrestricted Subsidiaries resulting from payments of
dividends, repayments 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 (i) the use of an
aggregate of $10,000,000 for Restricted Payments not otherwise permitted by this
Section 4.04, (ii) the distribution of amounts to Holdings sufficient to pay the
scheduled interest or dividends, as applicable, owed by Holdings on the Holdings
Securities as such interest or dividends become due and payable and so long as
(A) Holdings is the direct Parent of the Company owning 100% of the capital
stock of the Company, and (B) such Holdings Securities contain no scheduled
requirement for the payment of cash interest or dividends, as applicable, until
at least five years from the date of their original issuance and (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 notwithstanding the foregoing paragraph, the provisions set forth in clause
(a), (b) or (c) of the immediately preceding paragraph will not prohibit (iv)
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, or (v) 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.
In determining the aggregate amount expended for Restricted Payments in
accordance with clause (c) of the first paragraph of this Section 4.04, 100% of
the amounts expended under clauses (i) through (v) of the immediately preceding
paragraph shall be deducted.
45
None of the transactions described in Section 4.01 above, shall be taken
into account in any calculation under this Section 4.04.
Section 4.05. Corporate Existence. Subject to Article 5, 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 4.06. 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.
Section 4.07. 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
4.07 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
46
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 Subsidiary.
Section 4.08. Compliance Certificate; Notice of Default. 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 ▇▇▇▇▇▇
does know of such a failure to comply, the certificate shall describe such
failure with particularity. The Officers' Certificate shall also notify the
Trustee should the relevant fiscal year end on any date other than the current
fiscal year end date.
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 4.09. Reports. Whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
47
shall deliver to the Trustee and to each Holder and to prospective purchasers of
Securities identified to the Company by an Initial Purchaser, within 15 days
after it files or would have been required to file such with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that the Company would have been required to file with the SEC if the Company
were subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC, and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required.
Section 4.10. Limitation on Status as Investment Company. The Company
shall not become, nor shall it permit any of its Restricted Subsidiaries to
become an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or otherwise become subject to regulation
under the Investment Company Act.
Section 4.11. Limitation on Transactions with Related Persons. The
Company will not, and will not permit any of its Restricted Subsidiaries or
Unrestricted Subsidiaries to, after the Issue Date, 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 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) any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of
$1,000,000 must 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, and (b) with respect to any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of
$5,000,000, 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
48
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 Restricted
Subsidiaries or between or among 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 4.04, (iv) any loan or advance by the Company or a
Restricted Subsidiary to employees of the Company or a Restricted Subsidiary in
the ordinary course of business, in an aggregate amount at any one time
outstanding not to exceed $500,000 and (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).
Section 4.12. Limitation on Incurrence of Additional Indebtedness. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
after the Issue Date, 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 if the Company's Annualized Operating Cash Flow Ratio, after giving
effect to the Incurrence of such Indebtedness, would have been less than 8 to 1.
In addition, if there exists no Default or Event of Default immediately
prior and subsequent thereto, the foregoing limitations will not apply to the
Incurrence of (i) Indebtedness by the Company or any of its Restricted
Subsidiaries constituting Existing Indebtedness, reduced by repayments of and
permanent reductions in commitments in satisfaction of the Net Cash Proceeds
application requirement set forth in Section 4.15 and by repayments and
permanent reductions in amounts outstanding pursuant to scheduled amortizations
and mandatory prepayments in accordance with the terms thereof, (ii)
Indebtedness, in an aggregate principal
49
amount not in excess of $525,000,000, permitted under the Credit Agreement,
reduced by (a) repayments of and permanent reductions in commitments in
satisfaction of the Net Cash Proceeds application requirement set forth in
Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness
Incurred pursuant to clause (x), below, so long as such amounts Incurred
pursuant to clause (x) remain outstanding; provided that, if there exists a
Default or an Event of Default immediately prior or subsequent thereto, the
Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this
clause (ii) so long as the proceeds from such Incurrence are not used directly
to pay any amounts owing in respect of any Indebtedness, including, without
limitation, principal, interest and commitment fees, other than with respect to
the Notes and the Holdings Securities, (iii) Indebtedness of the Company
evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the
Company that satisfies the provisions of clause (x) of the definition thereof or
(B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that
satisfies the provisions of clause (y) of the definition thereof, (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 date of any event that causes a Restricted Subsidiary no longer to be a
Restricted Subsidiary shall be an Incurrence Date with respect to such
Indebtedness, (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 $15,000,000, provided
that in the case of Purchase Money Indebtedness, such Indebtedness shall not
constitute less than 75% nor 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 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 of any Senior
Indebtedness Incurred in compliance with this Section 4.12, (ix) 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
$5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other
than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to
50
exceed $100,000,000 at any one time outstanding and (xi) Refinancing
Indebtedness Incurred to extend, renew, replace or refund Indebtedness
permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in
amount), (iii), (iv) and (xi) of this paragraph.
Indebtedness of any Person that is not a Restricted Subsidiary of the
Company (or that is a Non-Recourse Restricted Subsidiary designated to be a
Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary),
which Indebtedness is outstanding at the time such Person becomes such a
Restricted Subsidiary of the Company or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company shall be deemed to
have been Incurred, as the case may be, at the time such Person becomes such a
Restricted Subsidiary of the Company, or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company.
Section 4.13. Limitations on Restricting Subsidiary Dividends. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
with respect to securities issued directly thereby or with respect to which they
are obligors, 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)
the Indenture and the Securities, (ii any Existing Indebtedness, (ii the Credit
Agreement, (iv any applicable law or any governmental or administrative
regulation or order, (v) Refinancing Indebtedness permitted under the Indenture,
provided that the restrictions contained in the 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, (vi 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
the financing of the acquisition of a Person or real or tangible personal
property after the Issue Date which are not applicable to any Person or
property, other than the Person or property so acquired and which either (A)
were not put in place in anticipation of or in connection with such acquisition
or (B) constituted Permitted Acquisition Indebtedness of a Person satisfying the
provisions of clause (y) of the definition thereof or (vi any agreement (other
than those referred to in clause (vii)) of a Person acquired by the Company or a
51
Restricted Subsidiary of the Company, which restrictions existed at the time of
acquisition and were not put in place in anticipation of or in connection with
such acquisition. 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 4.14. Limitations on Layering of Indebtedness; Liens. The Company
will not incur or suffer to exist any Indebtedness that is subordinate in right
of payment to any other Indebtedness of the Company, unless, by its terms, such
Indebtedness is subordinate in right of payment to, or ranks pari passu with,
the Securities. The Company will not and will not permit any Restricted
Subsidiary to, directly or indirectly, 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 4.15. Limitation on Asset Sales and Sales of Subsidiary Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, after the Issue Date, 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 360
days after the date of such Asset Sale, an amount equal to the Net Cash Proceeds
therefrom (the "ASSET SALE OFFER AMOUNT") are applied to the optional redemption
of the Securities in accordance with the terms of Article 3 of this Indenture
and Paragraph 5(a) of the Securities and other Indebtedness of the Company
ranking on a 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 to the repurchase of the Securities
and such other Indebtedness pursuant to an irrevocable, unconditional offer (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) (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 of such other Indebtedness (or
accreted value in
52
the case of Indebtedness issued with an original issue discount) plus, in each
case, accrued interest to the date of payment made within 330 days of such Asset
Sale, or (b) within 330 days of such Asset Sale, the Asset Sale Offer 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 retire
permanently Senior Indebtedness or Indebtedness of a 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 $1,000,000,
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) or the Indebtedness of any Restricted
Subsidiary 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 4.12 (incluing 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 or be continuing after giving effect to,
on a pro forma basis, such Asset Sale, unless such Asset Sale is in
consideration solely of cash or Cash Equivalents and such consideration is
applied immediately to the permanent reduction of the principal amount of
Indebtedness outstanding pursuant to the Credit Agreement, 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
53
$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 Offer 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 Offer 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 5.01;
(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 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 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
54
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, unless (A)(i) the Company has received a
binding commitment from such Person (or the direct or indirect parent of
such Person) that such Person (or the direct or indirect parent of such
Person) will distribute to the Company in cash an amount equal to the
Company's Annualized Operating Cash Flow (determined as of the date of such
Asset Sale) attributable to the property, business, or assets of the
Company and its Restricted Subsidiaries exchanged in connection with such
Asset Sale during each consecutive 12-month period subsequent to such Asset
Sale (unless and until the Company shall have sold all of such Capital
Stock, provided that the provisions of clause (B) below, if applicable,
shall have been satisfied), (ii) immediately after such Asset Sale the
aggregate number of Net Pops of the wireless communications systems in
which the Company or any of its Restricted Subsidiaries has ownership
interests ("COMPANY SYSTEMS") that are owned directly by a Person or
Persons a majority of whose voting power and Capital Stock is owned
directly or indirectly by the Company is no less than 80% of the aggregate
number of Net Pops of Company Systems immediately prior to such Asset Sale
and (iii) upon consummation of such Asset Sale, on a pro forma basis, the
ratio of such Person's Annualized Operating Cash Flow to the product of
Consolidated Interest Expense for the Reference Period multiplied by four
(but excluding from Consolidated Interest Expense all amounts that are not
required to be paid in cash on a current basis) shall be at least 1 to 1,
or (B) in the case of Capital Stock of a Person that is not a Subsidiary of
the Company owned by the Company or a Restricted Subsidiary that is
exchanged (the "EXCHANGED CAPITAL STOCK") for Capital Stock of another
Person all or substantially all of whose assets are of a type used in a
Related Business, either (i) the Exchanged Capital Stock shall not have
been acquired prior to such Asset Sale in reliance upon clause (A) of this
proviso or (ii) the requirements of subclauses (A)(i) (based on the
original guaranteed cash flow) and (A)(iii)
55
shall be satisfied with respect to any Capital Stock acquired in
consideration of the Exchanged Capital Stock.
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 4.04, without giving effect to clause (i) of the second paragraph
thereof, shall not be deemed to be Asset Sales.
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 4.15 is referred to as the "ACCUMULATED
AMOUNT."
For purposes of this Section 4.15, "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 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 4.15;
56
(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 4.15 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 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 4.15, 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, 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
57
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.
Any such Asset Sale Offer shall comply with all applicable provisions of
applicable Federal and state laws, rules and regulations, including those
regulating tender offers, if applicable, and any provisions of this Indenture
that conflict with such laws shall be deemed to be superseded by the provisions
of such laws.
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 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.
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 4.15 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
58
Accumulated Amount will be reduced to zero irrespective of the amount of
Indebtedness tendered pursuant to the Asset Sale Offer.
Section 4.16. 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 4.17. Rule 144A Information Requirement. The Company shall
furnish to the Holders of the Securities and prospective purchasers of
Securities designated by the Holders of Transfer Restricted Securities, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act until such time as the Company either
concluded an offer to exchange the Exchange Securities for the Initial
Securities or a registration statement relating to resales of the Securities has
become effective under the Securities Act. The Company shall also furnish such
information during the pendency of any suspension of effectiveness of the resale
registration statement.
Section 4.18. Limitation on Lines of Business. The Company shall not, nor
shall it permit any of its Restricted Subsidiaries to, directly or indirectly
engage in any line or lines of business activity other than that 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
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Special Rights no more favorable than those held by the Company or such
Restricted Subsidiary in such Restricted Partnership.
Section 4.20. Deposit of Proceeds with Trustee Pending Consummation of the
Merger.
On the Issue Date, the Company shall pay to the Trustee for deposit in the
Collateral Account the net proceeds from the issuance of the Securities (the
"NET OFFERING PROCEEDS") and such additional amount as, when added to the Net
Offering Proceeds, equals $186,517,187.50, representing 101% of the aggregate
principal amount of the Securities plus the interest that would accrue up to and
including December 31, 1997 were all $175,000,000 aggregate principal amount of
the Securities to be outstanding from the Issue Date to such date (the "SPECIAL
REDEMPTION AMOUNT"), as set forth in Article 10.
ARTICLE 5
Successor Corporation
Section 5.01. Limitation on Merger, Sale or Consolidation. (a) The
Company will not consolidate with or merge with or into another Person 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 the 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) (A) 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 4.12 or (B), if the
requirement of clause (A) is not satisfied, (x) any Indebtedness of the
resulting surviving or transferee entity in excess of the amount of the
Company's Indebtedness immediately prior to such transaction is Permitted
Acquisition Indebtedness and (y) the requirement of clause (A) is not satisfied
solely due to the Incurrence of such Permitted Acquisition Indebtedness; and
(iv) the Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, if applicable, confirming compliance with the
requirements of this Section 5.01.
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(b) For purposes of clause (a), 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.
SECTION 5.02. Successor Corporation Substituted. Upon any consolidation or
merger or any transfer of all or substantially all of the assets of 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 the Indenture with the same effect as if such
successor corporation had been named therein as the Company, and when a
successor corporation duly assumes all of the obligations of the Company
pursuant hereto and pursuant to the Securities, the predecessor shall be
released from such obligations.
ARTICLE 6
Events of Default and Remedies
SECTION 6.01. 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):
(a) failure to pay any installment of interest on the Securities as and
when the same becomes due and payable, and the continuance of such failure for a
period of 30 days;
(b) failure to pay all or any part of the principal of, 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 11
or the Asset Sale Offer Price in accordance with Section 4.15;
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(c) failure by the Company to observe or perform any covenant, agreement
or warranty contained in the Securities or this Indenture (other than a default
in the performance of any covenant, agreement or warranty which is specifically
dealt with elsewhere in this Section 6.01), or failure by the Company to cause
each Unrestricted Subsidiary to comply with clause (c) of the definition of
"UNRESTRICTED SUBSIDIARY," and continuance of such failure for a period of 30
days after (subject to the following paragraph) 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
outstanding Securities, a written notice specifying such default or breach,
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(d) the failure to pay at final stated maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the Company or the
acceleration of the final stated maturity of any Indebtedness if the aggregate
principal amount of such Indebtedness together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated, aggregates $15,000,000 or more at any
time;
(e) 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;
(f) 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 its debts as they become
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due, or takes any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing; or
(g) final unsatisfied judgments not covered by insurance, or the issuance
of any warrant of attachment against any portion of the property or assets of
the Company or any of its Restricted Subsidiaries, aggregating in excess of
$5,000,000 at any one time rendered against the Company or any of its Restricted
Subsidiaries and not stayed, bonded or discharged for a period (during which
execution shall not be effectively stayed) of 60 days (or, in the case of any
such final judgment which provides for payment over time, which shall so remain
unstayed, unbonded or undischarged beyond any applicable payment date provided
therein).
If a Default 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 6.02. Acceleration of Maturity Date; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in Section 6.01 or
(f) relating to the Company or any of its Restricted Subsidiaries) occurs and is
continuing, then, and 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 then outstanding
Securities, 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), determined as set
forth below, including in each case accrued interest thereon, to be due and
payable and the same (i) shall become immediately due and payable or (ii) if
there are any amounts outstanding under the Credit Agreement and the Company has
guaranteed the repayment of principal and interest on the Credit Agreement,
shall become immediately due and payable upon the first to occur of an
acceleration under the Credit Agreement or five business days after receipt by
the Company and the representative of the holders of the Indebtedness under the
Credit Agreement of the Acceleration Notice, but only if such Event of Default
is then continuing. If an Event of Default specified in Section 6.01 or (f)
relating to the Company or any Significant Restricted Subsidiary occurs, all
principal (or the Change of Control Purchase 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 6, the Holders of a majority in
aggregate principal amount of then outstanding Securities, by written notice to
the
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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 11.01.
Notwithstanding the previous sentence of this Section 6.02, 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.
In the event of a declaration of acceleration of the Securities because an
Event of Default has occurred and is continuing as a result of the acceleration
of any Indebtedness described in Section 6.01(d), the declaration of
acceleration of the Securities shall be automatically annulled if the holders of
all Indebtedness
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described in Section 6.01(d) (without any payment of any holders of any such
Indebtedness) have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 days of the date of such declaration and if (i) the
annulment of the acceleration of the Securities would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) all Events of
Default, except nonpayment of principal or interest on the Securities that
became due solely because of the acceleration of the Securities, have been cured
or waived.
SECTION 6.03. 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 (a) or (b) of Section 6.01
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 6.04. 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
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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 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 7.07.
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 6.05. 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.
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Section 6.06. Priorities. Any money collected by the Trustee pursuant to
this Article 6 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:
FIRST: To the Trustee in payment of all amounts due pursuant to Section
7.07;
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 6.07. 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
67
(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 6.08. 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 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 Payment, on the applicable
Change of Control Payment 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 6.09. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.10. 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 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
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
68
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, and
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.12. Waiver of past Default. Subject to Section 6.08, 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 (a) and (b) of
Section 6.01, or
(B) in respect of a covenant or provision hereof which,
under Article 9, 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
69
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 rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
ARTICLE 7
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 7.01. 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
70
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 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(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 to take or omit to take any action under this
Indenture or at the request, order or direction of the Holders or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(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
7.01.
(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 7.02. Rights of Trustee. Subject to Section 7.01:
(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 13.04 and 13.05. The Trustee shall not be liable for
any
71
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.
(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.
(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 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.01, 6.01 and 4.02, or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.03. 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.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities and it shall not
be accountable for the Company's use of the proceeds from the
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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 7.05. Notice of Default. If a Default or an Event of Default
occurs and is continuing and if it is 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 Payment Date, the payment of the
Redemption Price on the Redemption Date and the payment of the Offer Price on
the 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 7.06. Reports by Trustee to Holders. Within 60 days after each
February 15 beginning with the February 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 February 15 that complies with TIA (S) 313(a). The
Trustee also shall comply with TIA (S)(S) 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 7.07. 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 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 bad faith 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
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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, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, 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, including, without limitation, assets held in the Collateral
Account.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 or (f) 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 7.07 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article 8 of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.08. 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 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 710;
(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
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(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 7.07 have been paid,
the retiring Trustee shall transfer all property held by it as trustee
(including the Collateral Account) to the successor Trustee, subject to the lien
provided in Section 7.07, 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 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. 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 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 (S) 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 (S) 310(b).
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Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated.
ARTICLE 8
Legal Defeasance and Covenant Defeasance
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option at any time, elect to have Section 8.02 or
Section 8.03 applied to all outstanding Securities upon compliance with the
conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge. Upon the Company's exercise
under Section 8.01 of the option applicable to this Section 8.02, 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 8.05 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 8.04, and as more fully set forth in such Section 8.04,
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 2.04, 2.06, 2.07, 2.10 and 4.03, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 with respect to the Securities.
Section 8.03. Covenant Defeasance. Upon the Company's exercise under
Section 8.01 of the option applicable to this Section 8.03, the Company shall be
released from its obligations under the covenants contained in Sections 4.04,
4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.18, 4.19 and Article 5
(other
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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 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 8.04. Conditions to Legal or Covenant Defeasance. The following
shall be the conditions to the application of either Section 8.02 or Section
8.03 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 8 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, (a) cash, or (b) U.S. Government Obligations or
U.S. Legal Tender Equivalents, or (c) 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 (i) the principal of,
premium, if any, and interest on the outstanding Securities on the Stated
Maturity or on the applicable Redemption Date, as the case may be, of such
principal or installment of principal, premium, if any, or interest and the
Holders of Securities shall have a valid, perfected, exclusive security interest
in the assets of such trust; provided that the Trustee shall have been
irrevocably instructed to apply such cash and the proceeds of such U.S.
Government Obligations or U.S. Legal Tender Equivalents to said payments with
respect to the Securities;
(b) In the case of an election under Section 8.02, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
satisfactory 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
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either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the outstanding Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) In the case of an election under Section 8.03, 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 the outstanding
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 in the same amount, 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 with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, in so far as
Section 6.01 or 6.01 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 8.03 will cease to be in effect unless an Event
of Default under Section 6.01 or 6.01 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 the
Company's Subsidiaries is a party or by which any of them is bound;
(f) In the case of an election under either Section 8.02 or 8.03, 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 8.02
or 8.03 was not made by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding 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 or the Covenant Defeasance under
Section 8.03 (as the case may be) have been complied with as contemplated by
this Section 8.04.
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Section 8.05. Deposited U.S. Legal Tender Equivalents and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to
Section 8.06, all cash, U.S. Legal Tender Equivalents and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 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 8.06. 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 on its request; 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.
Section 8.07. Reinstatement. If the Trustee or Paying Agent is unable to
apply any cash, U.S. Legal Tender Equivalents or U.S. Government Obligations in
accordance with Section 8.02 or 8.03, 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 8.02 or 8.03 until such time as the
Trustee or Paying Agent is permitted to apply such money in accordance with
Sections 8.02 and 8.03, 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
subrogated to the rights of the Holders of such Securities to receive such
payment from the cash held by the Trustee or Paying Agent.
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ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. 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 5;
(5) to comply with the TIA; or
(6) to provide for the issuance and authorization of
the Exchange Securities.
Section 9.02. Amendments, Supplemental Indentures and Waivers with Consent
of Holders. Subject to Section 6.08, 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
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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 6.08, 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 of any Security;
(5) alter the security provisions of Section 4.20 or
the redemption provisions of Article 3 or paragraph 5 of the
Securities or the terms or provisions of Section 4.15 or the
terms or provisions of Article 11, 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 Security, including without limitation any
changes in Section 6.08, 6.12 or this third sentence of this
Section 9.02;
(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
81
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.
With the consent of Holders of two-thirds of the outstanding aggregate
principal amount of the Securities, the Company and the Trustee may change the
Change of Control Purchase Date and the Asset Sale Offer Period.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 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 9.02 or Section
9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this Article
9, 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 9.03. Compliance with TIA. Every amendment, waiver or supplement
of this Indenture or the Securities shall comply with the TIA as then in effect.
Section 9.04. 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 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
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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 9.02, 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 9.05. 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.
Section 9.06. Trustee to Sign Amendments, Etc. The Trustee shall execute
any amendment, supplement or waiver authorized pursuant to this Article 9;
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
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execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture.
ARTICLE 10
Collateral Account and Releases
Section 10.01. Collateral Account.
(a) Prior to the Issue Date of the Securities, the Trustee shall open with
▇▇▇▇▇▇ Trust and Savings Bank (the "Bank") and shall require the Bank to
establish on its books and maintain, a trust account (the "Collateral Account")
into which the Trustee shall deposit the Special Redemption Amount when received
from the Company pursuant to Section 4.20. In order to secure the full and
punctual payment of the Securities in accordance with the terms hereof (but
subject to the provisions of this Article 10 governing release of funds held in
the Collateral Account), the Company hereby grants to the Trustee a continuing
security interest in and to all of its right, title and interest in and to the
Collateral Account, all cash deposited therein and the Treasury Bills held
therein pursuant to Section 10.02 and all proceeds of any of the foregoing,
whether now existing or hereafter acquired or arising. The Collateral Account
shall relate solely to the Securities and the Collateral securing the
Securities, and funds in such account shall not be commingled with any other
moneys or properties, tangible or intangible. All payments to be made from time
to time by the Trustee to the Holders of Securities out of funds in the
Collateral Account as payment of the Redemption Price in connection with a
Special Redemption shall be made by the Trustee as Paying Agent. All moneys
deposited from time to time in the Collateral Account pursuant to this Indenture
shall be held by the Trustee in trust hereunder as Collateral as herein
provided. Any payments of principal of or interest on, or proceeds from the
sale of, Treasury Bills held in the Collateral Account shall be credited and
deposited into the Collateral Account. The Collateral Account shall be titled
"Bank of Montreal Trust Company, Trustee for benefit of holders of securities of
Price Communications Wireless, Inc., under an Indenture dated July 10, 1997
Collateral Account."
(b) The Collateral Account shall be maintained with the Bank until release
by the Trustee contemporaneously with the earliest of (i), (ii) or (iii) of this
subparagraph (b) to occur: (i)(A) the closing of the Merger, (B) the borrowing
by the Company of an aggregate of at least $325.0 million pursuant to the Credit
Agreement and (C) the receipt by the Company of the PCC Equity Contribution, and
(D) receipt by the Trustee of an order from the Company requesting that the
Trustee release the Collateral to the order of the Company; or (ii) the Business
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Day prior to the Special Redemption Date or (iii) the date of which no
Securities remain outstanding.
Section 10.02. Eligible Investments. Upon order from the Company, the
Trustee shall invest any funds in the Collateral Account in Treasury Bills,
provided that;
(a) any such investment and the proceeds therefrom are held through the
Collateral Account, and
(b) concurrently with making such investment, the Trustee ensures that (i)
the Bank credits the Treasury Bills to the Collateral Account and (ii)
the Bank causes a corresponding position to be credited to its
securities account (A) at the Federal Reserve Bank of New York or (B)
at a securities intermediary (as defined in 31 C.F.R. (S)357.2) that
has a Participant's Securities Account with the Federal Reserve Bank
of New York and also credited to such Participant's Securities
Account, in each case pursuant to Treasury Regulations and the New
York Uniform Commercial Code (the "UCC"), to the extent such laws are
applicable.
The Trustee shall not be liable for any loss incurred on any funds invested
in Treasury Bills pursuant to the provisions of this Section 10.02.
Section 10.03. Release of Collateral.
Upon order from the Company to the Trustee pursuant to clause (i) of
Section 10.01, all properties in the Collateral Account shall be released to the
Company and the security interests in the Collateral created under Section 10.01
shall terminate; and upon the Special Redemption, the Trustee shall apply all
funds in the Collateral Account (i) first, to pay the Redemption Price on the
Special Redemption Date in respect of the Special Redemption and (ii)
immediately after the Special Redemption Date, to return any remaining funds in
the Collateral Account to the Company. The Trustee, when required by the
provisions of the foregoing sentence, shall execute instruments to release the
Collateral from the lien of this Indenture, or convey the Trustee's interest in
the same, in a manner and under circumstances which are not inconsistent with
the provisions of this Indenture, and shall have the power to effect any sale of
the Treasury Bills or any portion thereof at such time. The Trustee shall not
be liable for any loss incurred upon the sale of Treasury Bills prior to
maturity in accordance with this Section and Section 3.06. No party relying
upon an instrument executed by the Trustee as provided in this Article 10 shall
be bound to ascertain the Trustee's authority,
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inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
ARTICLE 11
Right to Require Repurchase
Section 11.01. Repurchase of Securities at Option of the Holder Upon a
Change of Control.
(a) In the event that a Change of Control occurs, each Holder will have
the right, at such Holder's option, to require the Company to repurchase all or
any part of such Holder's Securities (provided that the principal amount of such
Securities at stated maturity must be $1,000 or an integral multiple thereof)
pursuant to an unconditional, irrevocable offer by the Company (the "CHANGE OF
CONTROL OFFER") on a date that is no later than 45 Business Days after the
occurrence of such Change of Control (the "CHANGE OF CONTROL PURCHASE DATE"), at
a cash price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
and including the Change of Control Purchase Date.
(b) Prior to the commencement of a Change of Control Offer, but in any
event within 30 days following any Change of Control, the Company covenants to,
if at such time the terms of the Credit Agreement require repayment upon a
Change of Control, (i) repay in full and terminate all commitments and
Indebtedness under the Credit Agreement or, (ii)(A) offer to repay in full and
terminate all commitments and Indebtedness under the Credit Agreement and (B)
repay the Indebtedness owed to each such lender that has accepted such offer or
(iii) obtain the requisite consents under the Credit Agreement to waive the
provisions of this sentence. The Company's failure to comply with the preceding
sentence shall constitute an Event of Default described in Section 6.01 and not
in Section 6.01.
(c) In the event that, pursuant to this Section 11.01, the Company shall
be required to commence a Change of Control Offer, the Company shall follow the
procedures set forth in this Section 11.01 as follows:
(1) the Change of Control Offer shall commence within 20 Business
Days following the Change of Control date;
86
(2) the Change of Control Offer shall remain open for 20 Business
Days, except to the extent that a longer period is required by applicable
law (the "CHANGE OF CONTROL OFFER PERIOD");
(3) upon the expiration of a Change of Control Offer Period, the
Company shall purchase all of the properly tendered and not properly
withdrawn Securities in response to the Change of Control Offer;
(4) 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
(5) 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
Securityholders, 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 11.01 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 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 11.01, 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
87
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 11.01, notwithstanding anything in this Indenture to the contrary,
be the Company or any Affiliate of the Company) receives, up to the close
of business 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.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state securities laws, rules and regulations,
including those regulating tender offers, if applicable, and any provisions of
this Indenture which conflict with such laws shall be deemed to be superseded by
the provisions of such laws.
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
(including accrued and unpaid interest) for all Securities or portions thereof
so tendered and (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 will on the Change of Control
Purchase Date promptly deliver to Holders of Securities so accepted payment in
an amount equal to the Change of Control Purchase Price for such Securities,
together with any accrued but unpaid interest, 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
Securities not so accepted shall 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.
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ARTICLE 12
Subordination
Section 12.01. Securities Subordinated to Senior Indebtedness.
The Company and each Holder, by its acceptance of Securities, agree that
(a) the payment of the principal of and interest on the Securities and (b) any
other payment in respect of the Securities, including on account of the
acquisition or redemption of the Securities by the Company (including, without
limitation, pursuant to Section 4.15 or 11.01) is subordinated, to the extent
and in the manner provided in this Article 12, to the prior payment of Senior
Indebtedness of the Company and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness. Notwithstanding anything
contained in this Article 12, no payments to any holders of Senior Indebtedness
shall be made out of investments or proceeds held in the Collateral Account,
which shall be applied solely as provided in Article 10 hereof.
This Article 12 shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and any one or
more of them may enforce such provisions.
Section 12.02. No Payment on Securities in Certain Circumstances.
(a) No payment may be made by or on behalf of the Company on account of
the principal of, premium, if any, or interest on the Securities (including any
repurchases of Securities) or on account of any other monetary obligation for
the payment of money due on the Securities, including the redemption provisions
of the Securities, for cash or property (other than Junior Securities issued in
connection with a reorganization pursuant to the Bankruptcy Laws of any
jurisdiction), (i) upon the maturity of any Senior Indebtedness by lapse of
time, acceleration (unless waived) or otherwise, unless and until all principal
of, premium, if any, and interest (and with respect to the Credit Agreement, any
other Obligations) on such Senior Indebtedness are first paid in full in cash or
Cash Equivalents (or, with respect to Senior Indebtedness other than the Credit
Agreement, such payment is duly provided for), or otherwise to the extent such
holders expressly acknowledge satisfaction of amounts due by settlement other
than in cash or Cash Equivalents, or (ii) in the event of default in the payment
of any principal of, premium, if any, or interest on Senior Indebtedness of the
Company when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise (a "PAYMENT DEFAULT"),
unless and
89
until such Payment Default has been cured or waived or otherwise has
ceased to exist.
(b) Upon (i) the happening of an event of default (other than a Payment
Default) that permits the holders of Senior Indebtedness (or a trustee or agent
on behalf of such holders) to declare such Senior Indebtedness to be due and
payable and (ii) written notice of such event of default given to the Trustee by
the holders (or a trustee, agent or other representative of such holders) of an
aggregate of at least $25 million principal amount outstanding of any Designated
Senior Indebtedness (a "PAYMENT NOTICE"), then, unless and until such event of
default has been cured or waived or otherwise has ceased to exist, no payment
may be made by or on behalf of the Company on account of the principal of,
premium, if any, or interest on the Securities, or to repurchase any of the
Securities, or on account of any other obligation for the payment of money in
respect of the Securities, including the redemption provisions of the
Securities, in any such case (other than payments made with Junior Securities
issued in connection with a reorganization pursuant to the Bankruptcy Laws of
any jurisdiction). Notwithstanding the foregoing, unless the Senior Indebtedness
in respect of which such event of default exists has been declared due and
payable in its entirety within 179 days after the Payment Notice is delivered as
set forth above (the "PAYMENT BLOCKAGE PERIOD") and such declaration has not
been rescinded or waived, at the end of the Payment Blockage Period, the Company
shall be required, unless the provisions described in Section 12.02 are then
applicable, to pay all sums not paid to the Holders of the Securities during the
Payment Blockage Period, due to the foregoing prohibitions and to resume all
other payments as and when due on the Securities. Any number of Payment Notices
may be given; provided, however, that (i) not more than one Payment Notice shall
be given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of such Payment Notice or the commencement of such
Payment Blockage Period (whether or not such event of default relates to the
same issue of Senior Indebtedness) shall be made the basis for the commencement
of any other Payment Blockage Period (it being acknowledged that any subsequent
action, or any breach of any financial covenant for a period commencing after
the expiration of such Payment Blockage Period that, in either case, would give
rise to a new event of default, even though it is a breach pursuant to any
provision under which a prior event of default previously existed, shall
constitute a new event of default for this purpose).
(c) In furtherance of the provisions of Section 12.01, in the event that,
notwithstanding the foregoing provisions of this Section 12.02, any payment or
distribution of assets of the Company (other than Junior Securities issued in
connection with a reorganization pursuant to the Bankruptcy Laws of any
jurisdiction) shall be received by the Trustee or the Holders at a time when
such payment or distribution is prohibited by the foregoing provisions, such
payment or
90
distribution shall be held in trust for the benefit of the holders of such
Senior Indebtedness, and shall be paid or delivered by the Trustee or such
Holders, as the case may be, to the holders of such Senior Indebtedness
remaining unpaid (or, with respect to Senior Indebtedness other than the Credit
Agreement, unprovided for) or to their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate principal amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, for application to the payment
of all such Senior Indebtedness remaining upaid, to the extent necessary to
pay (or, with respect to Senior Indebtedness other than the Credit Agreement to
provide for the payment) of all such Senior Indebtedness in full, or otherwise
to the extent holders expressly acknowledge satisfaction of amounts due after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
SECTION 12.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors or any
marshalling of assets or liabilities:
(a) the holders of all Senior Indebtedness of the Company will first be
entitled to receive payment in full in cash or Cash Equivalents (or, with
respect to Senior Indebtedness other than the Credit Agreement to have such
payment duly provided for), or with respect to any holder, otherwise to the
extent such holders expressly acknowledge satisfaction of amounts due in
settlement other than in cash or Cash Equivalents (it being acknowledged that
approval of a plan of reorganization in a bankruptcy proceeding shall not
constitute satisfaction of amounts due in settlement), before the Holders are
entitled to receive any payment on account of the principal of, premium, if any,
and interest on the Securities (other than Junior Securities issued in
connection with a reorganization pursuant to the Bankruptcy Laws of any
jurisdiction);
(b) any payment or distribution of assets of the Company of any kind or
character from any source, whether in cash, property or securities (other than
with Junior Securities issued in connection with a reorganization pursuant to
the Bankruptcy Laws of any jurisdiction) to which the Holders or the Trustee on
behalf of the Holders would be entitled, except for the provisions of this
Article 12, will be paid by the liquidating trustee or agent or other Person
making such a payment or distribution directly to the holders of such Senior
Indebtedness or their
91
representative to the extent necessary to make payment in full on all such
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character from any source,
whether in cash, property or securities (excluding payments made with Junior
Securities issued in connection with a reorganization pursuant to the Bankruptcy
Laws of any jurisdiction), shall be received by the Trustee or the Holders or
any Paying Agent (or, if the Company is acting as its own Paying Agent, money
for any such payment or distribution shall be segregated or held in trust) on
account of any principal, premium, interest, or other obligation for the payment
of money in respect of the Securities, before all Senior Indebtedness of the
Company is paid in full in cash or Cash Equivalents, such payment or
distribution (subject to the provisions of Section 12.07) shall be received
and held in trust by the Trustee or such Holder or Paying Agent for the benefit
of the holders of such Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment as provided herein
of all such Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to or for the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of such Senior Indebtedness, as promptly as practical following notice
from the Trustee to the holders of such Senior Indebtedness that such prohibited
payment has been received by the Trustee, Holder(s) or Paying Agent (or has been
segregated as provided above), such holder (or a representative therefor)
notifies the Trustee of the amounts then due and owing on such Senior
Indebtedness, if any, held by such holder and only the amounts specified in such
notices to the Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 12.04. Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full in cash or Cash Equivalents of all Senior
Indebtedness as provided herein, the Holders of Securities shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders of
such Senior Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article 12, which otherwise would have been made
to the Holders shall, as between the Company and the Holders, be deemed to be
payment by the Company or on account of such Senior Indebtedness, it being
understood that the provisions of this Article 12 are and are intended solely
for the purpose of defining
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the relative rights of the Holders, on the one hand, and the holders of such
Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 12 shall have been
applied, pursuant to the provisions of this Article 12, to the payment of
amounts payable under Senior Indebtedness of the Company, then the Holders shall
be entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash or Cash Equivalents.
SECTION 12.05. Obligations of the Company Unconditional.
Nothing contained in this Article 12 or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article 12, of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Notwithstanding anything to the contrary in this Article 12 or
elsewhere in this Indenture or in the Securities, upon any distribution of
assets of the Company referred to in this Article 12, the Trustee, subject to
the provisions of Sections 7.01 and 7.02, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 12 so long as
such court has been apprised of the provisions of, or the order, decree or
certificate makes reference to, the provisions of this Article 12. Nothing in
this Section 12.05 shall apply to the claims of, or payments to, the Trustee
under or pursuant to Section 7.07.
SECTION 12.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
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The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have received, no later than one Business Day prior to such payment,
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 7.01
and 7.02, shall be entitled in all respects conclusively to assume that no such
fact exists.
Section 12.07. Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in accordance
with Article 8 shall be for the sole benefit of the Holders and shall not be
subject to the subordination provisions of this Article 12. Otherwise, any
deposit of assets with the Trustee or the Paying Agent (whether or not in trust)
for the payment of principal of or interest on any Securities shall be subject
to the provisions of Sections 12.01, 12.02, 12.03 and 12.04; provided, that,
if prior to one Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment of either principal of or interest on any
Security) the Trustee or such Paying Agent shall not have received with respect
to such assets the written notice provided for in Section 12.06, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
Section 12.08. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination provisions contained in this Article 12 shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties
to this Indenture or the Holders.
Section 12.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities .
94
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article 12 and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company), the immediate filing of
a claim for the unpaid balance of his Securities in the form required in said
proceedings and cause said claim to be approved. If the Trustee does not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their representative are or is hereby
authorized to have the right to file and are or is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities. Nothing
herein contained shall be deemed to authorize the Trustee or the holders of
Senior Indebtedness or their representative to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee or the holders of Senior
Indebtedness or their representative to vote in respect of the claim of any
Securityholder in any such proceeding.
Section 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article 12 in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 12.11. Article 12 Not to Prevent Events of Default.
The failure to make a payment on account of principal of, premium, if any,
or interest or any other monetary obligation for the payment of money on the
Securities by reason of any provision of this Article 12 shall not be construed
as preventing the occurrence of a Default or an Event of Default under Section
6.01 or in any way prevent the Trustee or the Holders from exercising any right
hereunder, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property, securities or other assets
received upon the exercise of any such right.
Section 12.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
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The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and shall not be liable to any such holders (other than for
its willful misconduct or negligence) if it shall in good faith mistakenly pay
over or distribute to the Holders of Securities or the Company or any other
Person, cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article 12 or otherwise. Nothing in this
Section 12.12 shall affect the obligation of any other such Person to hold such
payment for the benefit of, and to pay such payment over to, the holders of
Senior Indebtedness or their representative.
ARTICLE 13
Miscellaneous
Section 13.01. 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 13.02. 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:
Price Communications Wireless, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
Bank of Montreal Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
96
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 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S) 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 (S) 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take 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 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 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
97
(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 13.06. 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 13.07. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions in New York, New York 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 succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 13.08. 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
98
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 13.09. 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 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.
99
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.
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.
100
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
PRICE COMMUNICATIONS WIRELESS,
INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Secretary
BANK OF MONTREAL TRUST
COMPANY, Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
101
Exhibit A
[FORM OF SECURITY]
11 3/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2007
No.
CUSIP No.
Price Communications Wireless, Inc., 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 July
15, 2007.
Interest Payment Dates: January 15 and July 15; commencing January 15,
1998.
Record Dates: January 1 and July 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.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
PRICE COMMUNICATIONS WIRELESS,
INC., a Delaware corporation
By:___________________________
Name:
Title:
A-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
[Name of Trustee]
as Trustee
By:______________________________________
Authorized Signatory
Dated:
A-2
PRICE COMMUNICATIONS WIRELESS, INC.
11 3/4% Series [A/B] Senior Subordinated Note due 2007
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
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, 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/
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B) IT
IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE
_____________________
/1/ This paragraph should only be added if the Security is issued in
global form
A-3
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE, AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY), (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATIONS UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER A TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING RESTRICTIONS./2/
1. Interest.
Price Communications Wireless, Inc., 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 11 3/4% per annum and will be payable semi-annually in cash on each
January 15 and July 15, commencing January 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 January 1 or July 1, whether or not a Business Day.
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
_______________________
/2/ This paragraph should be included only for the Initial Securities.
A-4
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 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, Bank of Montreal Trust Company (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 July 10,
1997 (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 unsecured obligations of the Company
limited in aggregate principal amount to $175,000,000.
5. Redemption. (a) The Company will not have the right to redeem any
Securities prior to July 15, 2002. On or after July 15, 2002, the Company will
have the right to redeem all or any part of the Securities in cash at the
redemption prices (expressed as a percentage of the aggregate principal amount
thereof) set forth below, in each case including accrued and unpaid interest, if
any, to the applicable Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date) if redeemed
during the 12-month period beginning July 15 of the years indicated below:
Year Redemption Price
---- ----------------
A-5
2002 105.875%
2003 104.406%
2004 102.938%
2005 101.469%
2006 and thereafter 100.000%
Notwithstanding the optional redemption provisions described in the
preceding paragraph (a), prior to July 10, 2002, in the event that the Company
or Parent consummates one or more offerings of their Qualified Capital Stock on
or before the third anniversary of the date of the issuance of the Securities,
the Company may at its option, use all or a portion of the cash contributed to
it from such offerings to redeem up to 35% of the original aggregate principal
amount of the Securities at a cash redemption price equal to 111.75% of the
principal amount of the Securities, plus accrued and unpaid interest thereon, if
any, to the redemption date; provided that at least $113,750,000 aggregate
principal amount of Securities remains outstanding thereafter.
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption on a pro rata basis or in such
other manner as it deems appropriate and fair. The Securities may be redeemed
in part in multiples of $1,000 only.
The Securities will not have the benefit of a sinking fund.
Any such redemption will comply with Article III of the Indenture.
(b) The Securities must be redeemed (the "SPECIAL REDEMPTION") on, or at
any time prior to, December 31, 1997 at a redemption price of 101% of the
principal amount of the Securities, plus accrued interest to the date of the
Special Redemption, if the Merger is not consummated on or before December 31,
1997 or if it appears, in the sole judgment of the Company, that the Merger will
not be consummated by December 31, 1997.
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 a Redemption Date other than the Special
Redemption Date, and with respect to the Special Redemption Date, not less than
5 business days prior to the Special 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.
A-6
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.
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 at its written request. 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, cash, U.S. Legal
Tender Equivalents, U.S. Government Obligations 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.
A-7
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
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. Ranking.
Payment of principal, premium, if any, and interest on the Securities is
subordinated, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness.
14. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to offer
to purchase on the Change of Control Payment Date all outstanding Securities at
a purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Change of Control Payment Date. Holders of
Securities will receive a Change of Control Offer from the Company prior to any
related Change of Control Payment Date and may elect to have such Securities
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds
A-8
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.
15. 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.
16. 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
A-9
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.
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-10
[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.
Date:___________________________ Signed:___________________________________
_______________________________________________________________________________
(Sign exactly as name appears on the other side of this Security)
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Article 11 of the Indenture, check the appropriate
box:
[_] Section 4.15 [_] Article XI
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.15 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-12
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES/3/
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
AMOUNT OF
DECREASE IN AMOUNT OF PRINCIPAL AMOUNT SIGNATURE OF
PRINCIPAL INCREASE IN OF THIS GLOBAL AUTHORIZED OFFICER
DATE OF AMOUNT PRINCIPAL AMOUNT SECURITY FOLLOWING OF TRUSTEE OR
EXCHANGE OF THIS GLOBAL OF THIS GLOBAL SUCH DECREASE (OR SECURITIES
SECURITY SECURITY INCREASE) CUSTODIAN
------------------------------------------------------------------------------------------
________________________
/3/ This schedule should only be added if the Security is issued in global
form.
A-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF SECURITIES/4/
Re: 11 3/4% SERIES A SENIOR SUBORDINATED NOTES DUE 2007 OF PRICE
COMMUNICATIONS WIRELESS, INC.
This Certificate relates to $______ principal amount of Securities held in
/*/_____ book-entry or /*/ ______ definitive form by _____ (the "Transferor").
1. The Transferor:/*/
[_] (a) has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
[_] (b) has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
2. In connection with any such request prior to the date which is two years
after the later of the issuance of this Security (or any predecessor Security)
and the sale hereof by an Affiliate (as defined in Rule 144 under the Securities
Act of 1933, as amended (the "Securities Act")) of the Company (computed in
accordance with paragraph (d) of Rule 144 under the Securities Act) or by a
Transferor that was at the date of such transfer or during the three months
preceding such date of transfer an Affiliate of the Company, and in respect of
each such Security, the Transferor does hereby certify that Transferor is
familiar with the Indenture relating to the above-captioned Securities and as
provided in Section 2.06 of such Indenture, the transfer of this Security does
not require registration under the Securities Act because:/*/
[_] (a) Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture).
[_] (b) Such Security is being transferred to a person who the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) purchasing for its own account or for the account
of a qualified institutional buyer over which it exercises sole investment
discretion that is aware that the transfer is being made in reliance on Rule
144A (in satisfaction of Section
________________________________
/*/ The following should be included only for Initial Securities.
/T/ /1*/Check applicable box
A-14
Section 2.0(a)(ii)(B), Section 2.06 (b)(i)or Section 2.06 (d)(i)(B)of the
Indenture).
[_] (c) Such Security is being transferred pursuant to an exemption from
registration in accordance with Regulation S under the Securities Act (in
satisfaction of Section 2.06(a)(ii)(C) or Section 2.06(d)(i)(C) of the
Indenture).
[_] (d) Such Security is being transferred to an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1),(2),(3) or (7)
under the Securities Act which delivers a certificate in the form of Exhibit B
to the Indenture to the Trustee (in satisfaction of Section 2.06(a)(ii)(D) or
Section 2.06(a)(i)(D) of the Indenture).
[_] (e) Such Security is being transferred in reliance on and in compliance
with another exemption from the registration requirements of the Securities Act.
An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.06(a)(ii)(E) or Section 2.06(d)(i)(E) of the
Indenture).
__________________________________
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:______________________________
3. Affiliation with the Company [check if applicable]
[_] (a) The undersigned represents and warrants that it is, or at some time
during which it held this Security was, an Affiliate of the Company.
(b) If 3(a) above is checked and if the undersigned was not an Affiliate of
the Company at all times during which it held this Security, indicate
the periods during which the undersigned was an Affiliate of the
Company:
________________________________.
(c) If 3(a) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Security on or prior to the
date of transfer indicate when such purchase price will be paid:
________________________________.
TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS NOT
A QUALIFIED INSTITUTIONAL BUYER:
A-15
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information.
Dated:___________________________ _______________________________________
NOTICE: To be executed by an officer.
TO BE COMPLETED BY TRANSFEREE IF 2(c) ABOVE IS CHECKED:
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:__________________________ ________________________________________
NOTICE: To be executed by an officer.
If none of the boxes under Section 2 of this certificate is checked or if any of
the above representations required to be made by the Transferee is not made, the
Registrar shall not be obligated to register this Security in the name of any
person other than the Holder hereof.
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM 3(a) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS SECURITY AN AFFILIATE, AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE
COMPANY.
Dated:__________________________ _______________________________________
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of this
Security particular, without alteration
or enlargement or any change
whatsoever.......
A-16
EXHIBIT B
Bank of Montreal Trust Company
Dear Sirs:
In connection with our proposed purchase of $_______ principal amount of 11
3/4% Senior Subordinated Notes due 2007 (the "Notes") of Price Communications
Wireless, Inc. (the "Issuer"), we confirm that:
1. We acknowledge that we have been informed that the Notes were
originally issued and sold to purchasers who have received a copy of the
Offering Memorandum dated July 2, 1997, relating to the Notes and understand
that the Notes have not been, and will not be, registered under the Securities
Act of 1933, as amended (the "Securities Act") and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell, pledge or otherwise transfer any Notes prior to the second anniversary of
the later of the original issuance of the Notes or the sale thereof by the
Issuer or an affiliate (within the meaning of Rule 144 under the Securities Act
or any successor rule thereto, an "Affiliate") of the Issuer (computed in
accordance with paragraph (d) of Rule 144 under the Securities Act) or if we
are at the proposed date of such transfer or were during the three months
preceding such proposed date of transfer an Affiliate of the Issuer, we will do
so in compliance with any applicable state securities or "Blue Sky" laws and
only (A) to Issuer, (B) in accordance with Rule 144A under the Securities Act
(as indicated by the box checked by the transferor on the form of assignment on
the reverse of the Note), (C) pursuant to any exemption from registration in
accordance with Regulation S under the Securities Act (as indicated by the box
checked by the transferor on the form of assignment on the reverse of the Note),
(D) to an institutional investor that is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act which
delivers a certificate in the form hereof to the trustee under the Indenture
dated as of July 10, 1997 between Issuer and Bank of Montreal Trust Company, as
trustee (the "Indenture Trustee"), or (E) pursuant to any other applicable
exemption under the securities laws, and we further agree, in the capacities
stated above, to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are restricted as
stated herein.
In addition, we understand that, upon any proposed resale of any Note prior
to the second anniversary of the later of the original issuance of such Note (or
any predecessor Note thereof) or the sale of such Note (or any predecessor Note
thereof) by Issuer or an Affiliate of Issuer (computed in accordance with
paragraph (d) of Rule 144 under the Securities Act) or if we are at the proposed
date of such transfer or were during the three months preceding such proposed
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date of transfer an Affiliate of the Issuer, we will be required to furnish to
the Indenture Trustee, such certification and other information (including,
without limitation, an opinion of counsel) as the Indenture Trustee, or Issuer
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that certificates evidencing
Notes purchased by us will bear a legend to the foregoing effect until the
second anniversary of the later of the original issuance of the Notes (or any
predecessor Notes thereof) or the sale thereof by Issuer or an Affiliate of
Issuer (computed in accordance with paragraph (d) of Rule 144 under the
Securities Act) and for so long as we are or during the preceding three months
have been an Affiliate of the Issuer.
2. We are an institutional investor and an "accredited investor" (within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any account for which we are acting are each able to bear the economic
risk of our or its investment and can afford the complete loss of such
investment.
3. We are acquiring the Notes purchased by us for our own account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion and for each of which
we are acquiring not less than $250,000 aggregate principal amount of Notes.
4. We have received such information as we deem necessary in order to
make our investment decision.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Purchaser]
By:____________________________________
Name:
Title:
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