EXHIBIT 4.1
OMNIPOINT CORPORATION,
as Issuer
and
HSBC BANK USA,
as Trustee
_______________
INDENTURE
Dated as of September 23, 1999
_______________
11 1/2% Senior Notes due 2009
CROSSREFERENCE TABLE
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TIA SECTIONS INDENTURE SECTIONS
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(S) 310(a)(1)......................................................... 7.9
(a)(2)......................................................... 7.9
(b).................................................... 7.2; 7.7
(S) 311(a)......................................................... 7.2
(b)......................................................... 7.2
(S) 312(a)......................................................... 2.3
(b)........................................................ 10.2
(c)........................................................ 10.2
(S) 313(a)......................................................... 7.5
(c).............................................. 7.4; 7.5; 10.2
(d)......................................................... 7.5
(S) 314(a)............................................. 4.18; 7.4; 10.2
(a)(4).................................................. 4.17; 10.2
(c)(1)........................................................ 10.3
(c)(2)........................................................ 10.3
(e).................................................. 4.17; 10.4
(S) 315(a)......................................................... 7.1
(b)................................................... 7.4; 10.2
(c)......................................................... 7.1
(d)......................................................... 7.1
(e)........................................................ 6.11
(S) 316(a)(1)(A)......................................................... 6.5
(a)(1)(B)......................................................... 6.4
(b)......................................................... 6.7
(c)......................................................... 9.3
(S) 317(a)(1)......................................................... 6.8
(a)(2)......................................................... 6.9
(b)......................................................... 2.4
(S) 318(a)........................................................ 10.1
(c)........................................................ 10.1
Note: The Cross Reference Table shall not for any purpose be deemed to be a part
of the Indenture.
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ARTICLE I Definitions and Incorporation by Reference................................................... 1
Section 1.1 Definitions............................................................................ 1
Section 1.2 Incorporation by Reference of Trust Indenture Act...................................... 21
Section 1.3 Rules of Construction.................................................................. 22
ARTICLE II The Notes.................................................................................... 22
Section 2.1 Form and Dating........................................................................ 22
Section 2.2 Execution, Authentication and Denominations............................................ 23
Section 2.3 Registrar and Paying Agent............................................................. 23
Section 2.4 Paying Agent to Hold Money in Trust.................................................... 24
Section 2.5 Holder Lists........................................................................... 24
Section 2.6 Transfer and Exchange.................................................................. 24
Section 2.7 Replacement Notes...................................................................... 37
Section 2.8 Outstanding Notes...................................................................... 38
Section 2.9 Temporary Notes........................................................................ 39
Section 2.10 Cancellation........................................................................... 39
Section 2.11 CUSIP Numbers.......................................................................... 39
Section 2.12 Defaulted Interest..................................................................... 39
ARTICLE III Optional Redemption.......................................................................... 40
Section 3.1 Right of Redemption.................................................................... 40
Section 3.2 Notices to Trustee..................................................................... 40
Section 3.3 Selection of Notes to Be Redeemed...................................................... 41
Section 3.4 Notice of Redemption................................................................... 41
Section 3.5 Effect of Notice of Redemption......................................................... 42
Section 3.6 Deposit of Redemption Price............................................................ 42
Section 3.7 Payment of Notes Called for Redemption................................................. 42
Section 3.8 Notes Redeemed in Part................................................................. 43
ARTICLE IV Covenants.................................................................................... 43
Section 4.1 Payment of Notes....................................................................... 43
Section 4.2 Maintenance of Office or Agency........................................................ 43
Section 4.3 Limitation on Indebtedness............................................................. 44
Section 4.4 Limitation on Restricted Payments...................................................... 46
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Section 4.5 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries...................................................... 48
Section 4.6 Limitation on the Issuance and Sale of Capital Stock of Restricted Subsidiaries........ 50
Section 4.7 Limitation on Issuances of Guarantees by Restricted Subsidiaries....................... 50
Section 4.8 Limitation on Transactions with Stockholders and Affiliates............................ 51
Section 4.9 Limitation on Liens.................................................................... 52
Section 4.10 Limitation on Sale-Leaseback Transactions.............................................. 53
Section 4.11 Limitation on Asset Sales.............................................................. 53
Section 4.12 Repurchase of Notes upon a Change of Control........................................... 54
Section 4.13 Limitation on Use of Proceeds.......................................................... 54
Section 4.14 Existence.............................................................................. 54
Section 4.15 Payment of Taxes and Other Claims...................................................... 54
Section 4.16 Maintenance of Properties and Insurance................................................ 55
Section 4.17 Compliance Certificates................................................................ 55
Section 4.18 Commission Reports and Reports to Holders.............................................. 56
Section 4.19 Waiver of Stay, Extension or Usury Laws................................................ 56
Section 4.20 Limitation on Mirror Indebtedness...................................................... 56
Section 4.21 Limitation on Activities of the Special Subsidiary..................................... 57
ARTICLE V Successor Corporation........................................................................ 57
Section 5.1 When Company May Merge, Etc............................................................ 57
ARTICLE VI Default and Remedies......................................................................... 57
Section 6.1 Events of Default...................................................................... 57
Section 6.2 Acceleration........................................................................... 59
Section 6.3 Other Remedies......................................................................... 59
Section 6.4 Waiver of Past Defaults................................................................ 60
Section 6.5 Control by Majority.................................................................... 60
Section 6.6 Limitation on Suits.................................................................... 60
Section 6.7 Rights of Holders to Receive Payment................................................... 60
Section 6.8 Collection Suit by Trustee............................................................. 61
Section 6.9 Trustee May File Proofs of Claim....................................................... 61
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Section 6.10 Priorities............................................................................. 61
Section 6.11 Undertaking for Costs.................................................................. 62
Section 6.12 Restoration of Rights and Remedies..................................................... 62
Section 6.13 Rights and Remedies Cumulative......................................................... 62
Section 6.14 Delay or Omission Not Waiver........................................................... 62
ARTICLE VII Trustee...................................................................................... 63
Section 7.1 Rights of Trustee...................................................................... 63
Section 7.2 Individual Rights of Trustee........................................................... 65
Section 7.3 Trustee's Disclaimer................................................................... 65
Section 7.4 Notice of Default...................................................................... 65
Section 7.5 Reports by Trustee to Holders.......................................................... 65
Section 7.6 Compensation and Indemnity............................................................. 66
Section 7.7 Replacement of Trustee................................................................. 67
Section 7.8 Successor Trustee by Merger, Etc....................................................... 68
Section 7.9 Eligibility............................................................................ 68
Section 7.10 Money Held in Trust.................................................................... 68
ARTICLE VIII Discharge of Indenture....................................................................... 68
Section 8.1 Termination of Company's Obligations................................................... 68
Section 8.2 Defeasance and Discharge of Indenture.................................................. 69
Section 8.3 Defeasance of Certain Obligations...................................................... 70
Section 8.4 Application of Trust Money............................................................. 71
Section 8.5 Repayment to Company................................................................... 71
Section 8.6 Reinstatement.......................................................................... 72
ARTICLE IX Amendments, Supplements and Waivers.......................................................... 72
Section 9.1 Without Consent of Holders............................................................. 72
Section 9.2 With Consent of Holders................................................................ 72
Section 9.3 Revocation and Effect of Consent....................................................... 73
Section 9.4 Notation on or Exchange of Notes....................................................... 74
Section 9.5 Trustee to Sign Amendments, Etc........................................................ 74
Section 9.6 Conformity with Trust Indenture Act.................................................... 74
ARTICLE X Miscellaneous................................................................................ 75
Section 10.1 Trust Indenture Act.................................................................... 75
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Section 10.2 Notices................................................................................ 75
Section 10.3 Certificate and Opinion as to Conditions Precedent..................................... 76
Section 10.4 Statements Required in Certificate or Opinion.......................................... 76
Section 10.5 Acts of Holders........................................................................ 77
Section 10.6 Rules by Trustee, Paying Agent or Registrar............................................ 77
Section 10.7 Payment Date Other Than a Business Day................................................. 77
Section 10.8 Governing Law.......................................................................... 77
Section 10.9 No Adverse Interpretation of Other Agreements.......................................... 77
Section 10.10 No Recourse Against Others............................................................. 78
Section 10.11 Successors............................................................................. 78
Section 10.12 Duplicate Originals.................................................................... 78
Section 10.13 Separability........................................................................... 78
Section 10.14 Table of Contents, Headings, Etc....................................................... 78
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INDENTURE, dated as of September 23, 1999, between OMNIPOINT
CORPORATION, a Delaware corporation, as Issuer (the "Company"), and HSBC BANK
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USA, a New York banking corporation and trust company, as trustee (the
"Trustee").
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RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $205 million aggregate principal
amount of the Company's 11 1/2% Senior Notes due 2009 issuable as provided in
this Indenture, whether Original Notes (as defined below) or Exchange Notes (as
defined below). All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done, and the Company
has done all things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.1 Definitions.
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"144A Global Note" means a global note in substantially the form of
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Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person,
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Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person.
"Adjusted Consolidated Net Income" means, for any period, the
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aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing
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Adjusted Consolidated Net Income (without duplication): (i) the net income of
any Person (other than net income attributable to a Restricted Subsidiary) in
which any Person (other than the Company or any of its Restricted Subsidiaries)
has a majority interest and the net income of any Unrestricted Subsidiary,
except to the extent of the amount of dividends or other distributions actually
paid to the Company or any of its Restricted Subsidiaries by such other Person
or such Unrestricted Subsidiary during such period; (ii) the net income of any
Restricted Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; (iii) any gains or losses
(on an after-tax basis) attributable to Asset Sales; and (iv) all extraordinary
gains and extraordinary losses.
"Affiliate" means, as applied to any Person, any other Person directly
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or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or co-
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Registrar.
"Annualized Consolidated EBITDA" means, with respect to any Person,
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such Person's Consolidated EBITDA for the latest two fiscal quarters for which
financial statements are available multiplied by two.
"Applicable Procedures" means, with respect to any transfer or
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exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Acquisition" means (i) an Investment by the Company or any of
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its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries, provided
that such Person's primary business is a Telecommunications Business or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries of the property
and assets of any Person other than the Company or any of its Restricted
Subsidiaries that constitute all or substantially all of the assets of such
Person or a division or line of business of such Person, provided that the
property and assets acquired are Telecommunications Assets.
"Asset Disposition" means the sale or other disposition by the Company
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or any of its Restricted Subsidiaries (other than to the Company or a Restricted
Subsidiary of the Company) of (i) all or substantially all of the Capital Stock
of any Restricted Subsidiary of the
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Company or (ii) all or substantially all of the assets that constitute a
division or line of business of the Company or any of its Restricted
Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
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by way of merger, consolidation, and any sale and leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries disposed of outside the ordinary course of business of the Company
or such Restricted Subsidiary and, in each case, that is not governed by the
provisions of this Indenture applicable to mergers, consolidations and sales of
all or substantially all of the assets of the Company, provided that "Asset
Sale" shall not include (i) sales or other dispositions of inventory,
receivables and other current assets, (ii) Permitted Asset Swaps, (iii)
Restricted Payments permitted by Section 4.4, (iv) Permitted Investments, (v)
sales or other dispositions of assets with a fair market value (as certified in
an Officers' Certificate) not in excess of $1 million, (vi) any sale or other
disposition of any or all the Capital Stock of an Unrestricted Subsidiary, (vii)
any sale or other disposition of Temporary Cash Investments or (viii) any
transaction subject to Section 5.1. Additionally, the contribution of
Telecommunications Assets to an Unrestricted Subsidiary whereby the Company or a
Restricted Subsidiary receives Capital Stock of an Unrestricted Subsidiary shall
be deemed a Restricted Payment only and shall not be deemed an Asset Sale.
"Attributable Debt" means in respect of a sale and leaseback
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transaction, at the time of determination, the present value of the lessee for
the net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Authentication Order" has the meaning provided in Section 2.2(c).
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"Average Life" means, at any date of determination with respect to any
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Indebtedness, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Board of Directors" means the Board of Directors of the Company or
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any committee of such Board of Directors duly authorized to act under this
Indenture.
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"Board Resolution" means a copy of a resolution, certified by the
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Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
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Agreement.
"Business Day" means any day except a Saturday, Sunday or other day on
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which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
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interests, participation or other equivalents (however designated, whether
voting or nonvoting) in equity of such Person, whether now outstanding or issued
after the Closing Date, including, without limitation, all Common Stock and
Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
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property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
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the rental obligations under a Capitalized Lease.
"Cedel" means Cedel Bank, S.A.
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"Change of Control" means (a) the sale, lease, transfer, conveyance or
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other disposition of all or substantially all of the assets of the Company to
any "person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of
the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) other
than Existing Shareholders (except in connection with a liquidation or
dissolution of the Company that does not constitute a Change of Control under
clause (b) below), (b) the approval by the requisite shareholders of the Company
(or if the VoiceStream Transactions occur, Holdings or any Wholly Owned
Subsidiary of Holdings that beneficially owns 100% of the outstanding Voting
Stock of the Company) of a plan of liquidation or statutory dissolution (which
shall not be construed to include a plan of merger or consolidation) of the
Company, Holdings or such Subsidiary of Holdings, as the case may be, unless
Existing Shareholders "beneficially own" (as defined in Rule 13d-3 under the
Exchange Act) at least the same percentage of voting power after the
consummation of such plan as before or otherwise retain the right or ability, by
voting power, to control the Person that acquires the proceeds of such
liquidation or dissolution, (c) any "person" or "group" (within the meaning of
Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to
either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule 13d-
5(b)(1) under the Exchange Act), other than Existing Shareholders,
4
becomes the "beneficial owner" (as so defined) of more than 50% of the total
voting power of all classes of the Voting Stock of the Company (or if the
VoiceStream Transactions occur, Holdings or any Wholly Owned Subsidiary of
Holdings that beneficially owns 100% of the outstanding Voting Stock of the
Company) and/or warrants or options to acquire such Voting Stock, calculated on
a fully diluted basis, provided that Existing Shareholders "beneficially own"
(as so defined) in the aggregate a percentage of such Voting Stock or warrants
having a lesser percentage of voting power than such other "person" or "group"
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Company's Board of Directors,
or (d) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Company's (and/or if the VoiceStream
Transactions occur, Holdings' and any Wholly Owned Subsidiary of Holdings' that
beneficially owns 100% of the outstanding Voting Stock of the Company) Board of
Directors (together with any new directors whose election or appointment by such
board or whose nomination for election by the stockholders of the Company (or
Holdings or such Subsidiary of Holdings as the case may be) was approved by a
vote of the Existing Shareholders or 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 Company's Board of Directors then in
office. Notwithstanding anything herein to the contrary, neither the
consummation of the VoiceStream Transactions nor the pledge of (but not the
foreclosure upon) the Capital Stock of the Company or any of its Restricted
Subsidiaries to secure a Guarantee entered into pursuant to clause (x) of the
second paragraph of Section 4.3 shall be deemed to constitute a Change of
Control.
"Change of Control Event" means the occurrence of both a Change of
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Control and a Rating Decline.
"CIRI Transactions" means the transactions contemplated by the
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Purchase Agreement, dated as of June 23, 1999, between the Company and ▇▇▇▇
Inlet/VoiceStream GSM II PCS, LLC, a Delaware limited liability company, and the
Purchase Agreement, dated as of June 23, 1999, between the Company and ▇▇▇▇
Inlet/VoiceStream GSM III PCS, LLC , a Delaware limited liability company, each
as described in the Offering Memorandum.
"Closing Date" means the date on which the Notes are originally issued
------------
hereunder (it being understood that, if the Holdings Exchange Offer occurs, the
term "Closing Date" used in the indenture governing the notes offered by
Holdings shall mean the date on which the Holdings Exchange Offer is
consummated).
"Commission" means the Securities and Exchange Commission, as from
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time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
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interests, participation or other equivalents (however designated, whether
voting or nonvoting) of such
5
Person's equity, other than Preferred Stock of such Person, whether now
outstanding or issued after the Closing Date, including without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
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successor replaces it pursuant to Article V of this Indenture and thereafter
means the successor.
"Company Order" means a written request or order signed in the name of
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the Company (i) by its Chairman, a Vice Chairman, its President, its Chief
Financial Officer or a Vice President and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the Persons listed in clause (i) above in lieu of being signed by one of such
Persons listed in such clause (i) and one of the officers listed in clause (ii)
above.
"Consolidated EBITDA" means, for any period, the sum of the amounts
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for such period of (i) Adjusted Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) income taxes, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income (other than income taxes (x)
(either positive or negative) attributable to extraordinary and nonrecurring
gains or losses or sales of assets and (y) actually payable with respect to such
period), (iv) depreciation expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, (v) amortization expense, to the
extent such amount was deducted in calculating Adjusted Consolidated Net Income,
and (vi) all other non-cash items reducing Adjusted Consolidated Net Income
(other than items that will require cash payments and for which an accrual or
reserve is, or is required by GAAP to be, made), less all non-cash items
increasing Adjusted Consolidated Net Income, all as determined on a consolidated
basis for the Company and its Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (A) the amount of
Consolidated EBITDA attributable to such Restricted Subsidiary multiplied by (B)
the quotient of (1) the number of shares of outstanding Common Stock of such
Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of such
period.
"Consolidated Interest Expense" means, for any period, the aggregate
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amount of interest in respect of Indebtedness (including amortization of
original issue discount on Indebtedness and the interest portion of any
deferred payment obligation, calculated in accordance with the effective
interest method of accounting; all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements, and
Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Leases paid, accrued or scheduled to be paid or to be
accrued by the Company and its Restricted Subsidiaries during such period;
excluding, however, any amount of such interest of any Restricted Subsidiary to
the extent the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to clause (ii) of the
definition thereof (but only in the same proportion as the net income
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of such Restricted Subsidiary is excluded from the calculation of Adjusted
Consolidated Net Income pursuant to clause (ii) of the definition thereof), all
as determined on a consolidated basis (without taking into account Unrestricted
Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any date of determination, the
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ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis as of the end of the two most
recent fiscal quarters for which financial statements of the Company have become
available prior to such date (the "Reference Period") to (ii) the aggregate
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amount of Annualized Consolidated EBITDA. In making the foregoing calculation,
(A) Indebtedness shall be calculated after giving pro forma effect to (x) any
Indebtedness (including, if applicable, the Notes) Incurred subsequent to the
end of the Reference Period and on or prior to such date of determination, in
each case as if such Indebtedness had been Incurred and the proceeds thereof had
been applied on the last day of such Reference Period and (y) any Indebtedness
that was outstanding during such Reference Period or thereafter but that is not
outstanding or is to be repaid on such date in each case as if such Indebtedness
was repaid on the last day of such Reference Period; (B) pro forma effect shall
be given to Asset Dispositions and Asset Acquisitions (including giving pro
forma effect to the application of proceeds of any Asset Disposition) that
occurred in such Reference Period or thereafter and on or prior to such date of
determination as if they had occurred and such proceeds had been applied on the
first day of such Reference Period; and (C) pro forma effect shall be given to
asset dispositions and asset acquisitions (including giving pro forma effect to
the application of proceeds of any asset disposition) that have been made by any
Person that has become a Restricted Subsidiary or has been merged with or into
the Company or any Restricted Subsidiary during such Reference Period or
subsequent to such period and on or prior to such date and that would have
constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions
that occurred on the first day of such Reference Period.
"Consolidated Net Worth" means, at any date of determination,
----------------------
stockholders' equity as set forth on the most recently available consolidated
balance sheet, whether quarterly or annual, of the Company and its Restricted
Subsidiaries, less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP.
"Corporate Trust Office" means the office of the Trustee at which the
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corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration.
"Currency Agreement" means any foreign exchange contract, currency
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swap agreement or other similar agreement or arrangement.
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"Custodian" means the Trustee, as custodian with respect to the Global
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Notes, or any successor entity thereto.
"Default" means any event that is, or after notice or passage of time
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or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
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the Holder thereof and issued in accordance with Section 2.6 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Global Notes issuable or
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issued in whole or in part, the Person specified in Section 2.3 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Distribution Compliance Period" means the 40-day distribution
------------------------------
compliance period as defined in Rule 903(b)(2) of Regulation S.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
---------
office, as operator of the Euroclear systems.
"Event of Default" has the meaning provided in Section 6.1.
----------------
"Excess Proceeds" has the meaning provided in Section 4.11.
---------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Exchange Notes" means the Notes to be issued in the Exchange Offer
--------------
pursuant to Section 2.6(f) hereof.
"Exchange Offer" means the offer by the Company to exchange Exchange
--------------
Notes for Original Notes made pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
-------------------------------------
Registration Statement as defined in the Registration Rights Agreement.
"Existing Shareholders" means (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Madison Dearborn
---------------------
Capital Partners, L.P., ▇▇▇▇▇ & Company Incorporated and Chatterjee Management
Company and their respective Affiliates at the Closing Date and (ii) if the
VoiceStream Transactions occur, Holdings or any Wholly Owned Subsidiary thereof,
▇▇▇▇▇▇▇▇▇ Whampoa, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Providence Equity Partners Inc., and, in
each case above, their respective Affiliates as of the consummation of the
VoiceStream Transactions.
"FCC" means the Federal Communications Commission.
---
8
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect as of the date hereof, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession.
"Global Note Legend" means the legend set forth in Section 2.6(g)(ii),
------------------
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
------------
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Article 2 hereof.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep well, to purchase assets, goods, securities or services, to
take or pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means the registered holder of any Note.
------
"Holdings" means VoiceStream Wireless Holding Corporation, a Delaware
--------
corporation.
"Holdings Exchange Offer" has the meaning set forth in the
-----------------------
Registration Rights Agreement.
"IAI Global Note" means a Global Note in substantially the form of
---------------
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee, that shall be initially issued in a denomination
equal to $0, but shall thereafter be revised to represent the outstanding
principal amount of the Notes transferred to Institutional Accredited Investors.
"Incur" means, with respect to any Indebtedness, to incur, create,
-----
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an Incurrence of Indebtedness by reason of the
acquisition of more than 50% of the Capital Stock of any Person; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
9
"Indebtedness" means, with respect to any Person at any date of
------------
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except Trade Payables, (v) all Capitalized Lease Obligations of such Person,
(vi) all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, provided
that the amount of such Indebtedness shall be the lesser of (A) the fair market
value of such asset at such date of determination and (B) the amount of such
Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person, (viii) the maximum
fixed redemption price of Redeemable Stock of such Person at the time of
determination, provided, however, if such Redeemable Stock is not permitted to
be redeemed at the date of determination, the price shall be the book value of
such Redeemable Stock and (ix) Acquired Debt. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (i) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness and (ii) that Indebtedness shall not include any liability for
federal, state, local or other taxes. Notwithstanding the foregoing, solely for
purposes of clause (iv) of the second paragraph of Section 4.3, in the case of a
revolving credit or other similar facility, the total amount of funds
outstanding at the Closing Date shall be deemed to include the total amount of
committed funds available on the Closing Date; provided, that, the Company from
time to time may designate less than all of the committed borrowing capacity
under such revolving credit or similar facilities as being outstanding under
such clause (iv), it being understood that if the Company designates a lesser
amount, it may not subsequently redesignate a greater amount under that clause
(iv).
"Indenture" means this Indenture as originally executed or as it may
---------
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Indirect Participant" means a Person who holds a beneficial interest
--------------------
in a Global Note through a Participant.
"Initial Purchasers" means ▇▇▇▇▇▇ Brothers Inc. and Barclays Capital
------------------
Inc.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means each semiannual interest payment date on
---------------------
March 15 and September 15 of each year, commencing March 15, 2000.
"Interest Rate Agreement" means any interest rate protection
-----------------------
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate
10
cap agreement, interest rate collar agreement, interest rate hedge agreement,
option or future contract or other similar agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan
----------
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person (whether
purchased or acquired from the issuer or from a third party) and shall include
the designation of a Restricted Subsidiary as an Unrestricted Subsidiary.
"Letter of Transmittal" means the letter of transmittal to be prepared
---------------------
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, or any agreement to
give any security interest).
"Liquidated Damages" shall have the meaning specified in the
------------------
Registration Rights Agreement.
"Mirror Indebtedness" means Indebtedness, which may be subordinated in
-------------------
right of payment to Indebtedness of the Restricted Subsidiaries permitted to be
Incurred pursuant to Section 4.3, in the form of either (i) a demand note or
(ii) a term note having a final maturity no later than the final maturity of the
Notes, in each case owed by a Restricted Subsidiary to the Company or another
Restricted Subsidiary having interest payment or accrual dates and an interest
rate (whether current pay or accrual) equal to, or more frequent than or greater
than, the Notes.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor to
-------
the rating agency business thereof.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the
-----------------
proceeds of such Asset Sale in the form of cash or Temporary Cash Investments
net of (i) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes (whether or not paid or payable) as a result of such
Asset Sale without regard to the consolidated results of operations of the
Company and its Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of
11
the Company as a reserve against any liabilities associated with such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
determined in conformity with GAAP and (b) with respect to any issuance or sale
of Capital Stock, the proceeds of such issuance or sale in the form of cash or
cash equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents (except to the
extent such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary of the Company) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net of attorney's
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Non U.S. Person" means a Person who is not a U.S. Person.
-----------------
"Notes" means, prior to the Exchange Offer, the Original Notes, and
-----
after the Exchange Offer, the Original Notes, if any, and the Exchange Notes
that are issued pursuant to this Indenture.
"Offer to Purchase" means an offer by the Company to purchase Notes
-----------------
from the Holders commenced by mailing a notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed) (the "Payment Date"); (iii) that any Note not tendered will continue to
------------
accrue interest pursuant to its terms; (iv) that, unless the Company defaults in
the payment of the purchase price, any Note accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the Payment
Date; (vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or integral multiples thereof. On the Payment Date, the Company shall
(i) accept for payment on a pro rata basis Notes or portions thereof tendered
pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted
12
for payment by the Company. The Paying Agent shall promptly mail to the Holders
of Notes so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Note equal in
principal amount to the unpurchased portion of the Note surrendered, provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or integral multiples thereof. The Company will publicly announce the
results of an Offer to Purchase as soon as practicable after the Payment Date.
The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company
will comply with Rule 14e-l under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable, in the event that the Company is required to repurchase Notes
pursuant to an Offer to Purchase.
"Offering Memorandum" means the offering memorandum of the Company,
-------------------
dated September 17, 1999, relating to the Notes.
"Officer" means with respect to the Company, the Chairman of the
-------
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed by two Officers and
---------------------
delivered to the Trustee. Each Officers' Certificate (other than certificates
provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
"Opinion of Counsel" means a written opinion signed by legal counsel
------------------
who is acceptable to the Trustee and delivered to the Trustee. Such counsel may
be an employee of or counsel to the Company or the Trustee. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e).
Opinions of Counsel required to be delivered may have qualifications customary
for opinions of the type required.
"Original Notes" means the 11 1/2% Senior Notes due 2009 that are
--------------
issued pursuant to this Indenture and not exchanged for Exchange Notes in
connection with the offer to exchange Exchange Notes for Original Notes that may
be made pursuant to the Registration Rights Agreement.
"Participant" means, with respect to the Depositary, Euroclear or
-----------
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the Depository Trust Company, shall include
Euroclear and Cedel.
"Paying Agent" has the meaning provided in Section 2.3, except that,
------------
for the purposes of Article VIII, the Paying Agent shall not be the Company or a
Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Permitted Asset Swaps" means any exchange of Telecommunications
---------------------
Assets by the Company or a Restricted Subsidiary of the Company where the
Company and/or its Restricted Subsidiaries receive aggregate consideration
consisting of Telecommunications Assets, cash and other assets (or any
combination thereof) having an aggregate value at least
13
equal to the fair market value of the Telecommunications Assets being disposed
of by the Company or such Restricted Subsidiary (as determined by the Board of
Directors whose good faith determination shall be conclusive and evidenced by
the Board of Resolution); provided that (i) at least 75% of the consideration
received in such Permitted Asset Swap that does not consist of
Telecommunications Assets shall be in the form of cash or Temporary Cash
Investments and (ii) 100% of the consideration received in such transaction that
does not consist of Telecommunications Assets shall be treated as having been
received in an Asset Sale otherwise permitted by, but subject to, the terms of
Section 4.11.
"Permitted Investment" means (i) an Investment in the Company or a
--------------------
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such Person's primary business is a
Telecommunications Business; (ii) a Temporary Cash Investment; (iii) stock,
obligations or securities received in satisfaction of judgments; (iv) any
repurchase of stock, stock options, or warrants from employees pursuant to
agreements entered by the Company or any Restricted Subsidiary for consideration
not to exceed $2 million in any fiscal year; (v) any Investment, together with
all other Investments under this clause (v), less any previous Investments in
Persons pursuant to this clause (v) who subsequently become Restricted
Subsidiaries, not to exceed two times the Net Cash Proceeds received by the
Company after September 23, 1999 from the issuance and sale of its Capital Stock
(other than (A) Redeemable Stock, and (B) Preferred Stock that provides for the
payment of dividends in cash and (C) other than Net Cash Proceeds to the extent
used to Incur Indebtedness pursuant to clause (ii)(B) of the first paragraph of
Section 4.3) to a Person that is not a Subsidiary of the Company, in a Person in
a Telecommunications Business; (vi) the CIRI Transactions; (vii) any Investment
in any Person to the extent such Investment represents the non-cash portion of
the consideration received in an Asset Sale as permitted by Section 4.11 or in a
Permitted Asset Swap, (viii) Investments (including acquisitions of other
Telecommunications Businesses) made with Capital Stock or options, warrants or
rights to acquire Capital Stock, (ix) customary loans and 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
relocation expenses; (x) any Investments outstanding as of the Closing Date; and
(xi) any Investment or Investments not to exceed $50 million in the aggregate.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
---------------
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made, (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, (iv) Liens incurred or deposits
made
14
to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return of money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (vi)
Liens (including extensions and renewals thereof) upon real or personal
property; provided that (a) such Lien is created solely for the purpose of
securing Indebtedness Incurred in accordance with Section 4.3 (1) to finance the
cost (including the cost of improvement or construction) of the item of property
or assets subject thereto and such Lien is created prior to, at the time of or
within six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or (2) to
refinance any Indebtedness previously so secured, (b) the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such cost, and (c)
any such Lien shall not extend to or cover any property or assets other than
such item of property or assets and any improvements on such item; (vii) leases
or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted Subsidiaries,
taken as a whole; (viii) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or assets; (ix) any interest
or title of a lessor in the property subject to any Capitalized Lease or
operating lease; (x) Liens arising from filing Uniform Commercial Code financing
statements regarding leases; (xi) Liens in favor of the Company or any
Restricted Subsidiary; (xii) Liens arising from the rendering of a final
judgment or order against the Company or any Restricted Subsidiary of the
Company that does not give rise to an Event of Default; (xiii) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the products
and proceeds thereof; (xiv) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (xv) Liens encumbering customary initial deposits
and margin deposits, and other Liens that are either within the general
parameters customary in the industry and incurred in the ordinary course of
business, in each case securing Indebtedness under Interest Rate Agreements and
Currency Agreements and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations in interest
rates or the price of commodities; (xvi) Liens arising out of conditional sale,
title retention, consignment or similar arrangements, or the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Closing Date; and (xvii) Liens on
or sales of receivables.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all
---------------
shares, interests, participation or other equivalents (however designated,
whether voting or nonvoting) of such
15
Person's preferred or preference equity, whether now outstanding or issued after
the Closing Date, including, without limitation, all series and classes of such
preferred or preference stock.
"principal" of a debt security, including the Notes, means the
---------
principal amount due on the Stated Maturity as shown on such debt security.
"Private Placement Legend" means the legend set forth in Section
------------------------
2.6(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten public offering by the
----------------------
Company of primary shares of Common Stock of the Company pursuant to an
effective registration statement under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
---
"Rating Agency" means each of S&P and ▇▇▇▇▇'▇.
-------------
"Rating Category" means (i) with respect to S&P, any of the following
---------------
categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor
categories) and (ii) with respect to ▇▇▇▇▇'▇ any of the following categories:
Aaa, Aa, A, Baa, Ba, B, Caa, Ca and C (or equivalent successor categories). In
determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories (+ and -- for S&P: 1, 2 and 3
for ▇▇▇▇▇'▇) shall be taken into account (e.g., with respect to S&P, a decline
in a rating from BB+ to BB, as well as from BB-- to B+, will constitute a
decrease of one gradation).
"Rating Decline" means (i) a decrease of one or more gradations,
--------------
including gradations within Rating Categories as well as between Rating
Categories, in the rating of the Notes from the rating previously assigned to
the Notes by either Rating Agency or (ii) a withdrawal of the rating of the
Notes by either Rating Agency; provided that the decrease or withdrawal occurs
on, or within 90 days after, the date of public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control, which period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by either Rating
Agency.
"Redeemable Stock" means any class or series of Capital Stock of any
----------------
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at an time prior to the Stated Maturity of
the Notes or (iii) convertible into or exchangeable for Capital Stock referred
to in clause (i) or (ii) above or Indebtedness having a scheduled maturity prior
to the Stated Maturity of the Notes, provided that any Capital Stock that would
not constitute Redeemable Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the Stated Maturity of the Notes shall not constitute Redeemable Stock
if the "asset sale" or "change of control" provisions applicable to such Capital
Sock are no more favorable to the holders of such Capital Stock than the
provisions contained in
16
Sections 4.11 and 4.12 and such Capital Stock specifically provides that such
Person will not repurchase or redeem any such stock pursuant to such provision
prior to the Company's repurchase of such Notes as are required to be
repurchased pursuant to Sections 4.11 and 4.12.
"Redemption Date", when used with respect to any Note to be redeemed,
---------------
means that date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
----------------
means the price at which such Note is to be redeemed pursuant to this Indenture.
"Registrar" has the meaning provided in Section 2.3.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of September 23, 1999, among the Company and the Initial
Purchasers.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date means March 1 or September 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities
------------
Act.
"Regulation S Global Note" means a Global Note in substantially the
------------------------
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Regulation S.
"Responsible Officer", when used with respect to the Trustee, means
-------------------
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
--------------------------
Private Placement Legend.
"Restricted Global Note" means the 144A Global Note, the IAI Global
----------------------
Note and the Regulation S Global Note, each of which shall bear the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
---------------------
Investment.
"Restricted Payments" has the meaning provided in Section 4.4.
-------------------
"Restricted Subsidiary" means any Subsidiary of the Company other than
---------------------
an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
--------
17
"Rule 144A" means Rule 144A promulgated under the Securities Act.
---------
"Rule 903" means Rule 903 promulgated under the Securities Act.
--------
"Rule 904" means Rule 904 promulgated under the Securities Act.
--------
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
---
Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Security Register" has the meaning provided in Section 2.3.
-----------------
"Shelf Registration Statement" means the Shelf Registration Statement
----------------------------
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, any
----------------------
Restricted Subsidiary of the Company that, together with its Subsidiaries, (i)
for the most recent fiscal year of the Company, accounted for more than 10% of
the consolidated revenues of the Company and its Restricted Subsidiaries or (ii)
as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Special Subsidiary" means a direct Wholly Owned Subsidiary of the
------------------
Company designated as such by an Officers' Certificate, which designation may
not be revoked, and subject to Section 4.20.
"Stated Maturity" means, (i) with respect to any debt security, the
---------------
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest or Liquidated
Damages on any debt security, the date specified in such debt security as the
fixed date on which such installment is due and payable.
"Strategic Equity Investor" means a corporation or other entity with
-------------------------
an equity market capitalization, a net asset value or annual revenues of at
least $2 billion which is a Telecommunications Business.
"Subsidiary" means, with respect to any Person, any corporation,
----------
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Telecommunications Assets" means, with respect to any Person, any
-------------------------
asset that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of telecommunications equipment, inventory, systems and/or services,
including without limitation, any mobile telephone, PCS,
18
microwave or paging assets. Telecommunications Assets shall include stock, joint
venture or partnership interests of an entity principally engaged in a
Telecommunications Business.
"Telecommunications Business" means a business primarily involved in
---------------------------
the ownership, design, development, construction, acquisition, installation,
integration, management and/or provision of Telecommunications Assets.
"Temporary Cash Investment" means any of the following: (i) direct
-------------------------
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof not having a maturity of more than two years from the date of
acquisition, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America or any state thereof, and which bank or trust company
has capital surplus and undivided profits aggregating in excess of $50 million
and has outstanding debt which is rated "A" (or such similar equivalent rating)
or higher by at least one nationally recognized statistical rating organizing
(as defined in Rule 436 under the Securities Act) or any money market fund
sponsored by a registered broker dealer or mutual fund distributor, (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (ii) above entered into with a bank
meeting the qualifications described in clause (ii) above, (iv) commercial paper
maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any state thereof with a
rating at the time as of which any investment therein is made of "P-1" (or
higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P and (v)
securities with maturities of six months or less from the date of acquisition
issued or fully and unconditionally guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof and rated at least "A" by S&P or ▇▇▇▇▇'▇.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
--- -------------------
as amended (15 U.S. Code (S)(S) 77aaa - 77bbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.6; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" or "Trust Indenture Act" shall mean, to the extent required by such
amendment, the Trust Indenture Act of 1939, as so amended.
"Total Consolidated Indebtedness" means, at any date of determination,
-------------------------------
an amount equal to (a) the accreted value of all Indebtedness, in the case of
any Indebtedness issued with original issue discount, plus (b) the principal
amount (or other amount referred to in the definition of Indebtedness) of all
other Indebtedness of the Company and its Restricted Subsidiaries outstanding as
of the date of determination.
"Trade Payables" means any accounts payable or any other indebtedness
--------------
or monetary obligation to trade creditors created, assumed or Guaranteed by the
Company or any of its Restricted Subsidiaries arising in the ordinary course of
business in connection with the
19
acquisition of goods or services, except for payables that are more than 60 days
past due and not contested in good faith.
"Transfer Restricted Securities" means securities that bear or are
------------------------------
required to bear the Private Placement Legend set forth in Section 2.6(g)(i)
hereof.
"Trustee" means the party named as such in the first paragraph of this
-------
Indenture until a successor replaces it in accordance with the provisions of
Article VII of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
-----------------------------
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Definitive Note" means one or more Definitive Notes that
----------------------------
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means one or more Global Notes in
------------------------
substantially the form of Exhibit A attached hereto that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Notes that do not bear the
Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
-----------------------
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of or owns or holds any Lien on any property
of the Company or any Restricted Subsidiary, provided that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000 that such designation would be
permitted under Section 4.4. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company, provided
that immediately after giving effect to such designation (x) the Company could
incur $1.00 of additional Indebtedness under the first paragraph of Section 4.3
and (y) no Default or Event of Default shall have occurred and be continuing.
Any such designation by the Board of Director shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate that such designation complied
with the foregoing provisions.
"U.S. Government Obligations" means securities that are (i) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the
20
Notes, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
-----------
Securities Act.
"VoiceStream" means VoiceStream Wireless Corporation, a Washington
-----------
corporation.
"VoiceStream Transactions" means the transactions contemplated in
------------------------
connection with the proposed reorganization between the Company and Holdings,
including any consents an approvals required therefor, pursuant to the Agreement
and Plan of Reorganization, dated as of June 23, 1999, among VoiceStream
Wireless Corporation, Holdings and the Company.
"Voting Stock" means with respect to any Person, Capital Stock of any
------------
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
------------
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
Section 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
-------------------------------------------------
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Notes;
--------------------
"indenture security holder" means a Holder or a Noteholder;
-------------------------
"indenture to be qualified" means this Indenture;
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee; and
----------------- ---------------------
"obligor" on the indenture securities means the Company or any other
-------
obligor on the Notes.
21
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.3 Rules of Construction. Unless the context otherwise requires:
---------------------
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "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; and
(vii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE II
The Notes
Section 2.1 Form and Dating. (a) The Notes and the Trustee's
---------------
certificate of authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof. The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture, and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be substantially
-------------
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Note issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of
22
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
-----------------------------------------
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel shall be applicable to transfers of beneficial
interests in Global Notes that are held by Participants through Euroclear or
Cedel.
Section 2.2 Execution, Authentication and Denominations. (a) Two
-------------------------------------------
Officers shall sign the Notes for the Company by manual or facsimile signature.
The Company's seal may be reproduced on the Notes and may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by
at least one Officer (an "Authentication Order"), authenticate up to
--------------------
$205,000,000 in aggregate principal amount of Notes for original issue. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.7 hereof.
(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.3 Registrar and Paying Agent.
--------------------------
(a) The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Notes may be presented for payment ("Paying Agent"). The
------------
Registrar shall keep a register of the Notes and of their transfer and exchange
(the "Security Register"). The Company may appoint one or more co-registrars and
-----------------
one or more additional paying agents. The term "Registrar" includes any co-
registrar and the term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying
23
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
---
(c) The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes and as
agent for service of notice and demands. At the option of the Company, payment
of interest may be made by check mailed to the address of the Holders as such
address appears in the Security Register.
Section 2.4 Paying Agent to Hold Money in Trust. Not later than each due
-----------------------------------
date of the principal, premium and Liquidated Damages, if any, and interest on
any Notes, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal, premium and Liquidated
Damages, if any, and interest so becoming due. The Company shall require each
Paying Agent other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal of, premium and Liquidated
Damages, if any, and interest on the Notes (whether such money has been paid to
it by the Company or any other obligor on the Notes), and such Paying Agent
shall promptly notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money so paid over to the
Trustee. If the Company or a Subsidiary Acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5 Holder Lists. The Trustee shall preserve in as current a form
------------
as is reasonably practicable the most recent list available to it of the names
and addresses of all Holders and shall otherwise comply with TIA (S) 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
-----
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company shall otherwise comply with TIA (S) 312(a).
Section 2.6 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes. A Global Note may not be
-------------------------------------
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary
24
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes shall be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.6, 2.7 or 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.6(a), although beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
-----------------------------------------------------------------
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
--------------------------------------------------------
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the expiration of
the Distribution Compliance Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchasers). Beneficial
interests in any Unrestricted Global Note may be transferred only to Persons who
take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
------------------------------------------------------------
Global Notes. In connection with all transfers and exchanges of beneficial
------------
interests that are not subject to Section 2.6(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with
25
the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (B)(1)
above. Upon consummation of the Exchange Offer by the Company in accordance with
Section 2.6(f) hereof, the requirements of this Section 2.6(b)(ii) shall be
deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.6(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
------------------------------------------------------
Global Note. A beneficial interest in any Restricted Global Note may be
-----------
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the transfer complies with the
requirements of Section 2.6(b)(ii) above and the Registrar receives the
following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof; and
(B) if the transferee shall take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee shall take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (3) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
--------------------------------------------------
Restricted Global Note for Beneficial Interests in the Unrestricted Global Note.
-------------------------------------------------------------------------------
A beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a
26
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Company, if applicable, to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
------------------------------------------------------------------
(i) Beneficial Interests in Restricted Global Notes to Restricted
-------------------------------------------------------------
Definitive Notes. Restricted Global Notes and beneficial interests therein shall
----------------
be exchangeable for Definitive Notes if (i) the Depositary (x) notifies the
Company that it is unwilling or unable
27
to continue as depositary for the Restricted Global Notes and the Company
thereupon fails to appoint a successor depositary or (y) has ceased to be a
clearing agency registered under the Exchange Act and the Company fails to
appoint a successor, (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of the Definitive Notes or (iii)
there shall have occurred and be continuing a Default with respect to the Notes.
In all cases, Definitive Notes delivered in exchange for any Restricted Global
Note or beneficial interests therein shall be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with the Applicable Procedures).
In such event, the Trustee shall cause the Restricted Global Notes to
be canceled accordingly pursuant to Section 2.10 hereof, and the Company shall
execute and upon receipt of an Authentication Order the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.6(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.6(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
--------------------------------------------------
Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted
-----------------------------
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note
28
that does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Company, if applicable, to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
----------------------------------------------------
Unrestricted Definitive Notes. Unrestricted Global Notes and beneficial
-----------------------------
interests therein shall be exchangeable for Definitive Notes if (i) the
Depositary (x) notifies the Company that it is unwilling or unable to continue
as depositary for the Unrestricted Global Notes and the Company thereupon fails
to appoint a successor depositary or (y) has ceased to be a clearing agency
registered under the Exchange Act and the Company fails to appoint a successor,
(ii) the Company, at its option, notifies the Trustee in writing that it elects
to cause the issuance of the Definitive Notes or (iii) there shall have occurred
and be continuing a Default with respect to the Notes. In all cases, Definitive
Notes delivered in exchange for any Unrestricted Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with
the Applicable Procedures). In such event, the Trustee shall cause the
Unrestricted Global Notes to be canceled accordingly pursuant to Section 2.10
hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(iv) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(iv) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
--------------------------------------------------------
Interests.
---------
(i) Restricted Definitive Notes to Beneficial Interests in
------------------------------------------------------
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
-----------------------
to exchange such Note for a beneficial interest in a Restricted Global Note or
to register any transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:
29
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
------------------------------------------------------
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
-------------------------
such Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note only if:
30
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange
such Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act. Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.6(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
--------------------------------------------------------
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
-------------------------
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or the registration of such a
transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note
and increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or registration of transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet
been issued, the Company shall issue and, upon
31
receipt of an Authentication Order in accordance with Section 2.2 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
--------------------------------------------------------------
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.6(e), the Registrar shall register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.6(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
----------------------------------------------------------
Any Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transfer shall be made pursuant to Rule 903 or Rule 904
under the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer shall be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
------------------------------------------------------
Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for
-----
an Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
32
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications
in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Company
so requests, an Opinion of Counsel in form reasonably acceptable to the
Company, if applicable, to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
--------------------------------------------------------
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a
-----
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
--------------
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.2, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not broker-
dealers, (y) they are not participating in a distribution of the Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
33
(g) Legends. The following legends shall appear on the face of all
-------
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
------------------------
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in exchange therefor
or substitution thereof) shall bear the legend in substantially the following
form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH OMNIPOINT CORPORATION OR ANY AFFILIATE OF OMNIPOINT CORPORATION WAS
THE OWNER OF ANY NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO OMNIPOINT CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
34
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT OMNIPOINT CORPORATION SHALL HAVE THE RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETE AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii), c(iii),
(d)(ii), (d)(iii), e(ii), e(iii) or (f) to this Section 2.6 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
------------------
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION
35
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF OMNIPOINT CORPORATION.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN."
(h) Cancellation or Adjustment of Global Notes. At such time as all
------------------------------------------
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.10 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
------------------------------------------------------
36
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.9,
3.8, 4.11, 4.12 and 9.4 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.3 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (c) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted pursuant to this Section 2.6 to effect a registration
of transfer or exchange may be submitted by facsimile.
Section 2.7 Replacement Notes. If a mutilated Note is surrendered to the
-----------------
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a protected purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of like tenor and
principal amount; provided that the requirements of this Section 2.7 are met.
If
37
required by the Trustee or the Company, an indemnity bond must be furnished that
is sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Note is replaced. The Company may charge such Holder for the expenses of the
Company and the Trustee in replacing a Note. In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead of issuing a
new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies against the Company and the
Trustee with respect to the replacement or payment of mutilated, destroyed, lost
or wrongfully taken Notes.
Section 2.8 Outstanding Notes. Notes outstanding at any time are all Notes
-----------------
that have been authenticated by the Trustee, except for those cancelled by it,
those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to each of them that the replaced Note is held by a protected
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on a Redemption Date or the maturity date money sufficient to pay
Notes payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
Notes, or portions thereof, for the payment or redemption of which
moneys or U.S. Government Obligations (as provided for in Article VIII) in the
necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside, segregated
and held in trust by the Company for the Holders of such Notes (if the Company
shall act as its own Paying Agent), on and after that time shall cease to be
outstanding and, in the case of redemption, interest on such Notes shall cease
to accrue, provided that if such Notes, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice.
A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, provided, however, that, in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice,
38
consent or waiver, only Notes which a Responsible Officer of the Trustee has
actual knowledge to be so owned shall be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other obligor.
Section 2.9 Temporary Notes. Until definitive Notes are ready for delivery,
---------------
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have insertions, substitutions, omissions and other variations determined to be
appropriate by the Officer or Officers executing the temporary Notes, as
evidenced by the execution of such temporary Notes. If temporary Notes are
issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for such purpose
pursuant to Section 4.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
Section 2.10 Cancellation. The Company at any time may deliver, or cause to
------------
be delivered, Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee (and no one else) shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy them in accordance with its normal procedure.
Section 2.11 CUSIP Numbers. The Company in issuing the Notes may use
-------------
"CUSIP" numbers (if then generally in use), and the Company and the Trustee
shall use CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided that any such notice shall state that no representation is
made as to the correctness of such CUSIP numbers either as printed on the Notes
or as contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Notes; and
provided further that failure to use CUSIP numbers in any notice of redemption
or exchange shall not affect the validity or sufficiency of such notice. The
Company shall promptly notify the Trustee of any change in CUSIP numbers.
Section 2.12 Defaulted Interest. If the Company defaults in a payment of
------------------
interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.12 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a
39
notice that states the subsequent special record date, the payment date and the
amount of defaulted interest to be paid.
ARTICLE III
Optional Redemption
Section 3.1 Right of Redemption. (a) The Notes will be redeemable, at the
-------------------
Company's option, in whole or in part, at any time or from time to time, on or
after September 15, 2004 and prior to maturity, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each Holder's last
address as it appears in the Security Register, at the Redemption Prices
(expressed in percentages of principal amount) set forth below, plus accrued and
unpaid interest and Liquidated Damages, if any, to the Redemption Date (subject
to the right of Holders of record on the relevant Regular Record Date that is
prior to the Redemption Date to receive interest due on an Interest Payment
Date), if redeemed during the 12 month period commencing September 15, of the
years set forth below:
Redemption
Year Price
------------------- --------
2004 105.750%
2005 103.833%
2006 101.917%
2007 and thereafter 100.000%
(b) In addition, at any time prior to September 15, 2002, the Company
may redeem up to 35% of the aggregate principal amount of the Notes originally
issued, at any time as a whole or from time to time in part, with the proceeds
of one or more Public Equity Offerings or sales of Capital Stock (other than
Redeemable Stock) to one or more Strategic Equity Investors, each such Public
Equity Offering or sale to Strategic Equity Investors resulting in Net Cash
Proceeds of $50 million or more, at a redemption price (expressed as a
percentage of principal amount) of 111.50%, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date, provided that after any such
redemption at least 65% of the aggregate principal amount of Notes originally
outstanding remains outstanding and each such redemption is effected not more
than 60 days after the consummation of such Public Equity Offering or sale to
Strategic Equity Investors.
Section 3.2 Notices to Trustee. If the Company elects to redeem Notes
------------------
pursuant to Section 3.1, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the clause of
this Indenture pursuant to which the redemption shall occur.
The Company shall give each notice provided for in this Section 3.2 in
an Officers' Certificate at least 45 days before the Redemption Date (unless a
shorter period shall be satisfactory to the Trustee).
40
Section 3.3 Selection of Notes to Be Redeemed. If less than all of the
---------------------------------
Notes are to be redeemed at any time, the Trustee will select the Notes, or
portions thereof, for redemption in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not listed on a national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption. Notes in denominations of $1,000 in
principal amount may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 in principal amount or any integral
multiple thereof) of Notes that have denominations larger than $1,000 in
principal amount. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company and the Registrar promptly in writing of the Notes or
portions of Notes to be called for redemption.
Section 3.4 Notice of Redemption. At least 30 days but not more than 60
--------------------
days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first class mail to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the Redemption Date and the only remaining right of the Holders is to receive
payment of the Redemption Price plus accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date upon surrender of the Notes to the
Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion of
the principal amount (equal to $1,000 in principal amount at Stated Maturity or
any integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be reissued;
(vii) that, if any Note contains a CUSIP number as provided in
Section 2.10, no representation is being made as to the correctness of the CUSIP
number either as printed
41
on the Notes or as contained in the notice of redemption and that reliance may
be placed only on the other identification numbers printed on the Notes; and
(viii) the aggregate principal amount of Notes being redeemed.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
Section 3.5 Effect of Notice of Redemption. Once notice of redemption is
------------------------------
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Notes held by Holders to whom such notice was properly
given.
Section 3.6 Deposit of Redemption Price. On or prior to 10:00 a.m. New York
---------------------------
City time on any Redemption Date, the Company shall deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, shall segregate and
hold in trust as provided in Section 2.4) money in immediately available funds
sufficient to pay the Redemption Price of and accrued and unpaid interest and
Liquidated Damages, if any, on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
Section 3.7 Payment of Notes Called for Redemption. If notice of redemption
--------------------------------------
has been given in the manner provided under Section 3.4, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued and unpaid interest and Liquidated Damages, if any, to such Redemption
Date, and on and after such date (unless the Company shall default in the
payment of such Notes at the Redemption Price and accrued and unpaid interest
and Liquidated Damages, if any, to the Redemption Date, in which case the
principal, until paid, shall bear interest from the Redemption Date at the rate
prescribed in the Notes and Liquidated Damages, if any, shall continue to
accrue), such Notes shall cease to accrue interest and Liquidated Damages, if
any. Upon surrender of any Note for redemption in accordance with a notice of
redemption, such Note shall be paid and redeemed by the Company at the
Redemption Price, together with accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date; provided that installments of interest
and Liquidated Damages whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders registered as such
42
at the close of business on the relevant Regular Record Date; provided, further,
that if a Redemption Date is after a Regular Record Date and on or prior to the
relevant Interest Payment Date, the accrued interest and Liquidated Damages, if
any, will be payable to the Holder of the redeemed Notes registered on the
relevant Regular Record Date.
Section 3.8 Notes Redeemed in Part. Upon surrender of any Note that is
----------------------
redeemed in part, the Trustee shall authenticate for the Holder a new Note equal
in principal amount to the unredeemed portion of such surrendered Note.
ARTICLE IV
Covenants
Section 4.1 Payment of Notes. The Company shall pay the principal of,
----------------
premium and Liquidated Damages, if any, and interest on the Notes on the dates
and in the manner provided in the Notes and this Indenture. An installment of
principal, premium and Liquidated Damages, if any, or interest shall be
considered paid on the date due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company, or any Affiliate of any of them) holds on
that date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the installment. As provided in Section
6.9, upon any bankruptcy or reorganization procedure relative to the Company,
the Trustee shall serve as the Paying Agent and conversion agent, if any, for
the Notes.
The Company shall pay interest on overdue principal, premium and
Liquidated Damages, if any, and interest on overdue installments of interest, to
the extent lawful, at the rate per annum specified in the Notes.
Section 4.2 Maintenance of Office or Agency. The Company will maintain an
-------------------------------
office or agency in the Borough of Manhattan, the City of New York where Notes
may be surrendered for registration of transfer or exchange or for presentation
for payment and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will 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 10.2.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. 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 of the Company in accordance with Section 2.3 for the
purposes described in this Section 4.2.
43
Section 4.3 Limitation on Indebtedness. (a) The Company will not, and will
--------------------------
not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including Acquired Debt), provided, however, that the Company may Incur
Indebtedness and any of its Restricted Subsidiaries may issue shares of
Redeemable Stock if (i) no Default or Event of Default shall have occurred and
be continuing, and (ii) (A) the Consolidated Leverage Ratio is no greater than 7
to 1, for any Incurrence from the Closing Date through the fifth anniversary of
the Closing Date, or 6 to 1 thereafter or (B) with respect to Indebtedness
Incurred under this clause (B), the aggregate principal amount of all
Indebtedness so Incurred and outstanding is in an aggregate principal amount
that does not exceed 1.4 times the aggregate Net Cash Proceeds received by the
Company after September 23, 1999 from the issuance and sale (other than to a
Subsidiary) of Capital Stock (other than Redeemable Stock), other than (x)
proceeds to the extent relied upon to permit the making of one or more
Restricted Payments in compliance with Section 4.4 and (y) proceeds to the
extent relied upon to permit the making of one or more Permitted Investments
pursuant to clause (v) of the definition of that term.
Notwithstanding the foregoing, as long as no Default or Event of
Default shall have occurred and be continuing, the Company and (except as
specified below) any Restricted Subsidiary may issue or Incur each and all of
the following:
(i) Indebtedness due and owing to government entities in
connection with telecommunications license fees or Indebtedness Incurred to
finance the payment of deposits with and license fees to the FCC in connection
with FCC license auctions;
(ii) Indebtedness Incurred by the Company or any Restricted
Subsidiary the proceeds of which are (or the credit support provided by any such
Indebtedness is) used to finance the development, construction, expansion or
operation of Telecommunications Assets;
(iii) Indebtedness Incurred by the Company or any Restricted
Subsidiary the proceeds of which are (or the credit support provided by any such
Indebtedness is) used to finance the acquisition of Telecommunications Assets or
the Capital Stock of a Telecommunications Business;
(iv) Indebtedness outstanding as of the Closing Date;
(v) Indebtedness under one or more revolving credit or working
capital facilities in an aggregate principal amount outstanding or available at
any time not to exceed $500 million;
(vi) Indebtedness owed to the Company or any of its Restricted
Subsidiaries, provided that any subsequent issuance or transfer of any Capital
Stock which results in any such Restricted Subsidiary owed such Indebtedness
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted Subsidiary) shall
be deemed, in each case, to constitute the Incurrence of such Indebtedness;
44
(vii) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding Indebtedness, other
than Indebtedness Incurred under clauses (v) and (viii) of this Section 4.3 and
any refinancing thereof in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses), provided that (x)
Indebtedness Incurred to refinance or refund the Notes or other Indebtedness
does not have a higher relative seniority to the Notes than the Indebtedness
being refinanced or refunded, (y) the Average Life of such new Indebtedness is
at least equal to the remaining Average Life of the Indebtedness to be
refinanced or refunded and (z) Indebtedness Incurred to refinance Indebtedness
of the Company may not be Incurred by any Restricted Subsidiary;
(viii) Indebtedness (A) in respect of performance, surety or
appeal bonds provided in the ordinary course of business, (B) under Currency
Agreements and Interest Rate Agreements, provided that such agreements do not
increase the Indebtedness of the obligor outstanding at any time other than as a
result of fluctuation or interest rates or by reason of fees, indemnities and
compensation payable thereunder or (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition;
(ix) Indebtedness represented by the Notes; and
(x) Guarantees by the Company or its Restricted Subsidiaries
of Indebtedness of Holdings or of any Wholly Owned Subsidiary of Holdings that
beneficially owns 100% of the outstanding Voting Stock of the Company, but only
to the extent that (A) the proceeds of any such Indebtedness Guaranteed by the
Company or any of its Restricted Subsidiaries are lent or contributed to the
Company, (B) without giving effect to the application of this clause (x), the
Company or its Restricted Subsidiaries could have Incurred the Indebtedness
being Guaranteed directly pursuant to the provisions of this Section 4.3 and
(C) the Guarantee by any Restricted Subsidiary shall not extend to any portion
of such Indebtedness to the extent that the Restricted Subsidiary could not
Incur such Indebtedness pursuant to clause (a)(vii)(z) of this Section 4.3).
(b) Notwithstanding any other provision of this Section 4.3, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur pursuant to this Section 4.3 shall not be deemed to be exceeded due solely
to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section 4.3, (i) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included and (ii) any Liens
granted pursuant to the equal and ratable provisions referred to in Section 4.9
below shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.3, in the event that an item of Indebtedness
meets the criteria of more than
45
one of the types of Indebtedness described in this Section 4.3 or would be
entitled to be Incurred pursuant to the first paragraph of Section 4.3(a), the
Company, in its sole discretion, shall classify, and from time to time may
reclassify (in whole or in part), such item of Indebtedness and only be required
to include the amount and type of such Indebtedness in one of such clauses.
(d) Accrual of interest, accretion of accreted value and the payment
of interest in kind or the payment of dividends on Redeemable Stock in kind will
not be deemed an Incurrence of Indebtedness or the issuance of Redeemable Stock
for the purpose of this Section 4.3
Section 4.4 Limitation on Restricted Payments. The Company will not, and
---------------------------------
will not permit any Restricted Subsidiary to, directly or indirectly, (i)
declare or pay any dividend or make any distribution on its Capital Stock (other
than dividends or distributions payable solely in shares of its or such
Restricted Subsidiary's Capital Stock (other than Redeemable Stock) or in
options, warrants or other rights to acquire such shares of Capital Stock) held
by Persons other than (a) the Company, (b) any of its Restricted Subsidiaries,
or (c) any other shareholder of such Restricted Subsidiaries (so long as the
Company and its Restricted Subsidiaries receive their pro rata share of such
dividend or distribution based on their ownership of such class or series of
such Restricted Subsidiaries Capital Stock on which such dividend or
distribution is being made), (ii) purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock of the Company or an Unrestricted
Subsidiary (including options, warrants or other rights to acquire such shares
of Capital Stock) held by any Person (other than the Company or a Restricted
Subsidiary), (iii) purchase, redeem, defease, retire or otherwise acquire for
value any Indebtedness subordinate to the Notes prior to any scheduled maturity,
repayment or sinking fund payment, or (iv) make any Investment, other than a
Permitted Investment, in any Person (such payments or any other actions
described in clauses (i) through (iv) being collectively "Restricted Payments")
unless, at the time of, and after giving effect to, the proposed Restricted
Payment: (A) no Default or Event of Default shall have occurred and be
continuing, (B) the Company would be permitted to incur additional indebtedness
pursuant to the first paragraph of Section 4.3, and (C) the aggregate amount
expended for all Restricted Payments (the amount so expended, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution) after the
date hereof shall not exceed the sum of (1) the amount by which Consolidated
EBITDA exceeds 1.5 times Consolidated Interest Expense for the period from the
Closing Date through the end of the last completed fiscal quarter for which
financial statements are available plus (2) 100% of the aggregate Net Cash
Proceeds received by the Company on or after the Closing Date from the issuance
and sale permitted by this Indenture of its Capital Stock (other than Redeemable
Stock) to a Person who is not a Subsidiary of the Company, or from the issuance
to a Person who is not a Subsidiary of the Company of any options, warrants or
other rights to acquire Capital Stock (other than Redeemable Stock) of the
Company, or from the issuance and sale of convertible debt securities of the
Company to the extent converted into Capital Stock (other than Redeemable Stock
of the Company) (except, in any of the foregoing cases, to the extent such Net
Cash Proceeds are used to Incur Indebtedness pursuant to clause (ii)(B) of the
first paragraph of Section 4.3), plus (3) an amount equal to the net reduction
in Investments made by the Company or a Restricted Subsidiary after the Closing
Date in any Person resulting from (x) payments of interest on debt, dividends,
repayment of loans or advances, or other transfers or distributions of
46
property, in each case to the Company or any Restricted Subsidiary from any
Person, (y) to the extent that an Investment is sold for cash or otherwise
liquidated or repaid for cash, the after-tax cash return of capital with respect
to such Investment (less the cost of disposition, if any) and (z) the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary,
provided that in each of the foregoing cases, the aggregate amount of the net
reduction in Investments will not be deemed to exceed the amount of such
Investments previously made by the Company and its Restricted Subsidiaries in
such Person or Unrestricted Subsidiary which were treated as Restricted
Payments.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at said date of declaration such payment would comply
with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition
or retirement for value of Indebtedness that is subordinated in right of payment
to the Notes (including, premium if any, and accrued and unpaid interest) with
the proceeds of, or in exchange for, Indebtedness incurred under clause (vii) of
the second paragraph of Section 4.3;
(iii) the repurchase, redemption or other acquisition of Capital
Stock (or any options, warrants or other rights to acquire, or out of the
proceeds of a substantially concurrent offering of, shares of Capital Stock) of
the Company or any Restricted Subsidiary or any other Person in exchange for
shares of Capital Stock (other than Redeemable Stock) of the Company;
(iv) the redemption, repurchase, defeasance or other acquisition
or retirement for value of Indebtedness of the Company which is subordinated in
right of payment to the Notes in exchange for, or out of the proceeds of, a
substantially concurrent offering of shares of the Capital Stock of the Company
(other than Redeemable Stock);
(v) payments or distributions to dissenting stockholders
pursuant to applicable law in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company;
(vi) the distribution to shareholders of the Company or any
Restricted Subsidiary of shares of Capital Stock of any Unrestricted Subsidiary
or the distribution to shareholders of the Company of shares of Capital Stock of
any Subsidiary holding only the assets of the Company's technology business,
provided that in such latter case, after giving effect to such transaction on a
pro forma basis, (x) the Company would be permitted to incur additional
indebtedness pursuant to the first paragraph of Section 4.3, or (y) the
Company's Annualized Consolidated EBITDA would not decrease, provided, further,
in such latter case, that such Subsidiary has working capital not in excess of
$5 million;
47
(vii) the purchase, redemption. acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company to the
extent required by FCC rules in order to prevent the loss or secure the renewal
or reinstatement of any license or franchise held by the Company or any
Restricted Subsidiary
(viii) the repurchase of Indebtedness subordinated to the Notes
at a purchase price not greater than 101% of the principal (or accreted) amount
thereof, plus accrued and unpaid interest, if any, pursuant to a mandatory offer
to repurchase made after a Change of Control provided that the Company shall
first have made any Offer to Purchase (and repurchased all tendered Notes)
pursuant to Section 4.12; and
(ix) to the extent that Indebtedness Guaranteed pursuant to
clause (x) of the second paragraph of Section 4.3 has been contributed to the
capital of or loaned to the Company, the payment of dividends or distributions
by the Company in an amount sufficient to repay such Indebtedness (to the extent
of the Guarantee) in accordance with its terms; provided that except in the case
of clauses (i) and (ix) of this paragraph no Default or Event of Default shall
have occurred and be continuing or occur as a consequence of the actions or
payments set forth therein. Each Restricted Payment permitted pursuant to this
paragraph (other than the Restricted Payment referred to in clauses (ii) and
(ix) hereof) and each payment pursuant to clause (vi) of the definition of
Permitted Investment shall be included in calculating the aggregate amount of
Restricted Payments for purposes of clause (C) of the first paragraph of this
Section 4.4.
Any Investment in a Subsidiary that becomes an Unrestricted Subsidiary
shall become a Restricted Payment made on such date in the amount of the greater
of (x) the book value of such Subsidiary on the date such Subsidiary becomes an
Unrestricted Subsidiary and (y) the fair market value of such Subsidiary on such
date as determined (A) in good faith by the Board of Directors if such fair
market value is determined to be less than $10 million and (B) by an investment
banking firm of national standing with high yield underwriting expertise if such
fair market value is determined to be in excess of $10 million. Any Restricted
Payment made by contribution or transfer of assets shall be valued in the amount
of the greater of (x) the book value of such asset on the date of transfer or
(y) the fair market value on such date as determined (A) in good faith by the
Board of Directors if such fair market value is determined to be less than $10
million and (B) by an investment banking firm of national standing with high
yield underwriting expertise if such fair market value is determined to be in
excess of $10 million.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which any
calculations required by this Section 4.4 were computed, which calculations may
be based upon the Company's latest available financial statements.
Section 4.5 Limitation on Dividend and Other Payment Restrictions Affecting
---------------------------------------------------------------
Restricted Subsidiaries. The Company will not, and will not permit any
-----------------------
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or
48
restriction of any kind on the ability of any Restricted Subsidiary to (i) pay
dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary owned by the Company or any other
Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (iii) make loans or advances to the Company or any
other Restricted Subsidiary or (iv) transfer any of its property or assets to
the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in this Indenture or any other
agreements in effect on the Closing Date, and any extensions, refinancings,
renewals or replacements of such agreements, provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements are
no less favorable in any material respect to the Holders than those encumbrances
or restrictions that are then in effect and that are being extended, refinanced,
renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted Subsidiary and
existing at the time of such acquisition, which encumbrances or restrictions are
not applicable to any Person or the property or assets of any Person other than
such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.5, (A) that restrict in a customary manner the subletting, assignment
or transfer of any property or asset that is a license or contract or (B)
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture; or
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and assets of
such Restricted Subsidiary.
Nothing contained in this Section 4.5 shall prevent the Company or any
Restricted Subsidiary from (1) creating. incurring, assuming or suffering
to exist any Liens otherwise permitted in Section 4.9, (2) restricting the
sale or other disposition of property or assets of the Company or any of
its Restricted Subsidiaries that secure Indebtedness of the Company or any
of its Restricted Subsidiaries, or (3) restricting the payment of dividends
or distributions or other disposition of property or assets of or the
making of loans by any Restricted Subsidiary in connection with any
financing for the Telecommunications Business of such Restricted
Subsidiary, provided that in the case of clause (3) such restriction may be
entered into only if at such time the total amount, without duplication, of
(i) Mirror Indebtedness owed by Restricted Subsidiaries, less (ii) proceeds
of such Mirror Indebtedness that are invested in another Person, other than
(x) Investments in other Restricted Subsidiaries conducting no operations
other than the
49
holding of government licenses or (y) Investments in Mirror Indebtedness of
other Restricted Subsidiaries, plus (iii) capital contributions to the
Special Subsidiary, plus (iv) the cash and Temporary Cash Investments held
by the Company (not on a consolidated basis), equals or exceeds the
outstanding principal amount of the Notes and all other Indebtedness
outstanding on the Closing Date that ranks equally with the Notes.
Section 4.6 Limitation on the Issuance and Sale of Capital Stock of
-------------------------------------------------------
Restricted Subsidiaries. The Company (a) will not permit any Restricted
-----------------------
Subsidiary to issue any Capital Stock (other than to the Company or a Restricted
Subsidiary) and (b) will not permit any Person (other than the Company or a
Restricted Subsidiary) to own any Capital Stock of any Restricted Subsidiary,
provided, however, that this Section 4.6 will not prohibit (i) the sale or other
disposition of all of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the other provisions of this Indenture; (ii) the ownership by directors of
director's qualifying shares of Capital Stock of any Restricted Subsidiary, to
the extent mandated by applicable law; (iii) the ownership of Capital Stock of a
Restricted Subsidiary issued and outstanding either (A) as of the Closing Date
or (B) prior to the time that such Person becomes a Restricted Subsidiary so
long as such Capital Stock was not issued in contemplation of such Person's
becoming a Restricted Subsidiary of the Company or otherwise being acquired by
the Company; (iv) the issuance of Capital Stock of a Restricted Subsidiary
pursuant to an employee stock option plan approved by the Boards of Directors of
the Restricted Subsidiary and the Company; or (v) the issuance or sale of
Capital Stock of a Restricted Subsidiary in a transaction not prohibited by
Section 4.11, provided that such Restricted Subsidiary will remain a Restricted
Subsidiary, and only if at the time of such sale, the total amount, without
duplication, of (i) Mirror Indebtedness owed by Restricted Subsidiaries, less
(ii) proceeds of such Mirror Indebtedness that are invested in another Person,
other than (x) Investments in other Restricted Subsidiaries conducting no
operations other than the holding of government licenses or (y) Investments in
Mirror Indebtedness of other Restricted Subsidiaries, plus (iii) capital
contributions to the Special Subsidiary, plus (iv) the cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes.
Section 4.7 Limitation on Issuances of Guarantees by Restricted
---------------------------------------------------
Subsidiaries. The Company will not permit any Restricted Subsidiary to Guarantee
------------
or assume the payment of any Indebtedness of the Company (other than
Indebtedness described in clause (x) of the second paragraph of Section 4.3)
unless (i) (A) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a Guarantee of payment of the Notes by such
Restricted Subsidiary and (B) with respect to any Guarantee of Subordinated
Indebtedness of the Company by such Restricted Subsidiary, any such Guarantee
shall be subordinated to such Restricted Subsidiary's Guarantee with respect to
the Notes at least to the same extent as such Subordinated Indebtedness is
subordinated to the Notes and (ii) such Restricted Subsidiary waives any rights
of reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee until the Notes have been paid in
full. The incurrence by a Restricted Subsidiary as a primary obligor of any
Indebtedness that is guaranteed by the
50
Company will not be deemed a Guarantee of the Company's Indebtedness for
purposes of this Section 4.7.
Notwithstanding the foregoing, any Guarantee of the Notes or waiver of
rights created pursuant to the provisions described in the foregoing paragraph
will provide by their terms that they will be automatically and unconditionally
released and discharged upon the release by the holders of the Indebtedness of
the Company described in the preceding paragraph of their Guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness, except by or as a result of payment under
such Guarantee), at a time when (A) no other Indebtedness of the Company has
been Guaranteed by such Restricted Subsidiary or (B) the holders of all such
other Indebtedness which is Guaranteed by such Restricted Subsidiary also
release their Guarantee by such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness, except
by or as a result of payment under such Guarantee).
Section 4.8 Limitation on Transactions with Stockholders and Affiliates.
-----------------------------------------------------------
Except for any agreement entered into on or before the Closing Date, the Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with any holder (or any Affiliate of such holder) of
10% or more of any Voting Stock of the Company or with any Affiliate of the
Company or any Restricted Subsidiary, except upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or at the time of the execution of the
agreement providing therefor, in a comparable arm's length transaction with a
Person that is not such a holder or an Affiliate.
In addition to the foregoing, transactions with any holder (or any
Affiliate of such holder) of 10% or more of any Voting Stock (i) having a fair
market value or involving payments equal to or in excess of $5 million shall be
approved by a majority of the disinterested members of the Board of Directors
and (ii) having a fair market value or involving payments equal to or in excess
of $10 million shall require the Company or a Restricted Subsidiary to deliver
to the Trustee a written opinion of a nationally recognized investment banking
firm stating that the transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view. The foregoing limitation shall not
apply to (i) any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted Subsidiaries; (ii) the payment of reasonable
and customary regular fees to directors of the Company who are not employees of
the Company and any employment agreement entered into by the Company or any
Restricted Subsidiary in the ordinary course of business; (iii) any Restricted
Payments not prohibited by Section 4.4; (iv) any transaction pursuant to an
agreement to which the Company or any Restricted Subsidiary is a party and in
effect on the Closing Date; (v) commercial or technical agreements customary in
the industry (as determined by the Board of Directors) in which the Company and
its Restricted Subsidiaries are engaged and entered into in the ordinary course
of business between the Company and any joint venture (regardless of
organizational form) in which the Company has a substantial economic interest,
(vi) solely with respect to the requirement that the Company obtain a fairness
opinion, Guarantees of Indebtedness pursuant to clause (x) of the second
paragraph of
51
Section 4.3, (vii) loans or advances to officers or employees of the Company or
any of its Restricted Subsidiaries to pay business related travel expenses or
reasonable relocation costs of such officers or employees in connection with
their employment by the Company or any of its Restricted Subsidiaries, and
(viii) in the case of the indenture governing the notes that may be issued in
the Holdings Exchange Offer, payments and other transactions required under or
contemplated by any agreement in effect on the Closing Date and disclosed in
VoiceStream's Form 10/A filed with the Commission on April 13, 1999 or its Form
10-Q for the quarter ended June 30, 1999 (or that were not required to be
disclosed in the Form 10/A pursuant to the rules and regulations of the
Commission) or any ordinary course commercial agreement in effect at the time an
entity becomes a Restricted Subsidiary or is merged into the Company (and not
entered into in anticipation of such acquisition) or any amendment thereto or
replacement of such agreement so long as any such amendment or replacement is
not disadvantageous to the Holders of the Notes in any material respect.
Section 4.9 Limitation on Liens. The Company will not, and will not permit
-------------------
any Restricted Subsidiary to, create, Incur, assume or suffer to exist any Lien
on any of its assets or properties of any character, or any shares of Capital
Stock or Indebtedness of any Restricted Subsidiary, without making effective
provision for all of the Notes and all other amounts due under this Indenture to
be directly secured equally and ratably with (or, if the obligation or liability
to be secured by such Lien is subordinated in right of payment to the Notes,
prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Closing Date;
(ii) Liens granted after the Closing Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in favor of
the Holders;
(iii) Liens with respect to the assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company or a Restricted Subsidiary
to secure Indebtedness owing to the Company or such other Restricted Subsidiary;
(iv) Liens securing obligations under revolving credit or
working capital facilities under clause (v) of the second paragraph of Section
4.3, provided that the aggregate amount of Indebtedness secured by any such
Liens shall not at any time exceed the amount of Indebtedness permitted to be
Incurred under clause (v) of the second paragraph of Section 4.3;
(v) Liens securing Indebtedness under clauses (i), (ii), (iii)
or (x) of the second paragraph of Section 4.3 granted on or after the Closing
Date on the Capital Stock or assets of any Restricted Subsidiary, including any
Lien granted in connection with a refinancing thereof;
(vi) Liens on telecommunications licenses securing obligations
to government entities;
52
(vii) Liens on property of a person existing at the time such
person is merged into, or the assets of such person are acquired by, the Company
or any Restricted Subsidiary, provided that such Liens were in existence prior
to the contemplation of such merger or acquisition and do not secure any
property or assets of the Company or any of its Restricted Subsidiaries other
than the property or assets subject to the Liens prior to such merger or
acquisition;
(viii) Permitted Liens; or
(ix) Liens in addition to those set forth above, provided that
such Liens secure only Indebtedness of the Company and its Restricted
Subsidiaries and, at the time of determination, the aggregate amount of such
Indebtedness then outstanding shall not exceed 5% of the Company's consolidated
total assets as reflected on its most recent publicly available consolidated
balance sheet.
Section 4.10 Limitation on Sale-Leaseback Transactions. The Company will
-----------------------------------------
not, and will not permit any Restricted Subsidiary to, enter into any sale and
leaseback transactions (except between or among the Company and one or more of
its direct or indirect Wholly Owned Restricted Subsidiaries) unless (A) the
Company or that Restricted Subsidiary could have (x) incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction under Section 4.3 and (y) incurred a Lien to secure such
Indebtedness under Section 4.9; (B) the gross cash proceeds of that sale and
leaseback transaction are at least equal to the fair market value, as determined
in good faith by the Board of Directors and set forth in an Officer's
Certificate delivered to the Trustee, of the property that is the subject of the
sale and leaseback transaction; and (z) the Company applies the proceeds of the
sale and leaseback transaction in compliance with Section 4.11.
Section 4.11 Limitation on Asset Sales. The Company will not, and will not
-------------------------
permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i) the
consideration received by the Company or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of and (ii) at
least 75% of the consideration received consists of cash or Temporary Cash
Investments, provided, however, that the amount of (x) any liabilities of the
Company or any Restricted Subsidiary that are assumed by the transferee of any
such assets and (y) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are immediately
converted by the Company or such Restricted Subsidiary into cash, shall be
deemed to be Temporary Cash Investments (to the extent of the Temporary Cash
Investments received in such conversion) for the purposes of this clause (ii).
In the event and to the extent that the Net Cash Proceeds received by the
Company or any of its Restricted Subsidiaries from one or more Asset Sales
occurring after the Closing Date in any period of twelve consecutive months
exceed $5 million, then the Company shall or shall cause the relevant Restricted
Subsidiary to (1) within twelve months after the date Net Cash Proceeds so
received exceed such an amount (a) apply an amount equal to such excess Net Cash
Proceeds to permanently repay Indebtedness of the Company or any Restricted
Subsidiary or (b) invest an equal amount, or the amount not so applied pursuant
to clause (a) (or enter into a definitive agreement committing to so invest
within twelve months after the date of such agreement), in
53
Telecommunications Assets (or in a company engaged in a Telecommunications
Business) and/or (2) apply (no later than the end of the twelve month period
referred to in clause (1)) such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (1)) as provided in the following paragraph of this
Section 4.11. The amount of such excess Net Cash Proceeds required to be applied
(or to be committed to be applied) during such twelve month period as set forth
in clause (1) of the preceding sentence and not applied as so required by the
end of such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 4.11 equals or exceeds $5 million, the Company must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis with the holders of any other
Indebtedness of the Company ranking equally with the Notes and entitled at the
time to receive a comparable Offer to Purchase an aggregate principal amount of
Notes and such other Indebtedness equal to the Excess Proceeds on such date, at
a purchase price equal to 100% of the principal amount of the Notes, plus, in
each case accrued interest (if any) to the Payment Date. Notwithstanding the
foregoing, to the extent that any amount of Excess Proceeds remains after
completion of any such Offer to Purchase, the Company may use such remaining
amount for general corporate purposes and the amount of Excess Proceeds shall be
reset to zero.
Section 4.12 Repurchase of Notes upon a Change of Control. The Company
--------------------------------------------
shall commence within 30 days of the occurrence of a Change of Control and
consummate an Offer to Purchase for all Notes then outstanding, at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest and
Liquidated Damages, if any, to the Payment Date.
Section 4.13 Limitation on Use of Proceeds. The Company shall use the net
-----------------------------
proceeds from the offering of the Notes as described in the Offering Memorandum.
Section 4.14 Existence. Subject to Articles IV and V of this Indenture, the
---------
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence and the existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of the
Company and each such Subsidiary and the rights (whether pursuant to charter,
partnership certificate, agreement, statute or otherwise), licenses and
franchises of the Company and each such Subsidiary; provided that the Company
shall not be required to preserve any such right, license or franchise, or the
existence of any Restricted Subsidiary, if the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Restricted Subsidiaries taken as a whole; and provided further that any
Restricted Subsidiary may consolidate with, merge into, or sell, convey,
transfer, lease or otherwise dispose of all or part of its property and assets
to the Company or any Wholly Owned Restricted Subsidiary.
Section 4.15 Payment of Taxes and Other Claims. The Company will pay or
---------------------------------
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company or any such Subsidiary, (b) the income or
54
profits of any such Subsidiary which is a corporation or (c) the property of the
Company or any such Subsidiary and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company or any such Subsidiary; provided 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 the amount, applicability or validity of which
is being contested in good faith by appropriate proceedings and for which
adequate reserves have been established.
Section 4.16 Maintenance of Properties and Insurance. The Company will
---------------------------------------
cause all properties used or useful in the conduct of its business or the
business of any Restricted Subsidiary and material to the Company and its
Restricted Subsidiaries taken as a whole, to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
adequate for the level or stage of the Company's or any Restricted Subsidiary's
business and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
that nothing in this Section 4.16 shall prevent the Company or any such
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the board of directors
of such Restricted Subsidiary having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance against loss or damage of the kinds
customarily insured against by corporations similarly situated and owning like
properties, including, but not limited to, products liability insurance and
public liability insurance, with 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 the Company in good faith
shall determine to be reasonable and appropriate in the circumstances.
Section 4.17 Compliance Certificates. (a) The Company shall deliver to the
-----------------------
Trustee, within 90 days after the end of the last fiscal quarter of each year,
an Officers' Certificate stating whether or not the signers know of any Default
or Event of Default that occurred during such fiscal year. Such certificate
shall comply with the applicable provisions of the TIA. If any of the signers of
the Officers' Certificate have knowledge of such a Default or Event of Default,
the certificate shall describe any such Default or Event of Default and its
status. The first certificate to be delivered pursuant to this Section 4.17(a)
shall be for the first fiscal year ending after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days after the
end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the Notes
as they relate to accounting matters, (ii) that they have read the most recent
Officers' Certificate delivered to the Trustee pursuant to paragraph (a) of this
Section 4.17
55
and (iii) whether, in connection with their audit examination, anything came to
their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of Article
IV and Section 5.1 of this Indenture as they pertain to accounting matters and,
if any Default or Event of Default has come to their attention, specifying the
nature and period of existence thereof; provided that such independent certified
public accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default or Event of Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards in effect at the date of
such examination.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and which action the Company is taking or proposes to take with
respect thereto.
Section 4.18 Commission Reports and Reports to Holders. The Company shall
-----------------------------------------
file with the Commission the annual, quarterly and other reports and other
information required by Section 13(a) or 15(d) of the Exchange Act, regardless
of whether such sections of the Exchange Act are applicable to the Company. If
the Commission will not accept such filings, the Company shall mail or cause to
be mailed copies of such reports to Holders and the Trustee within 15 days after
the date it would have been required to file such reports with the Commission
had it been subject to such sections; provided, however, that the copies of such
reports mailed to Holders may omit exhibits, which the Company will supply to
any Holder at such Holder's request.
Section 4.19 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, or 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 that would
prohibit or forgive the Company from paying all or any portion of the principal
of, premium and Liquidated Damages, if any, or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
that 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 4.20 Limitation on Mirror Indebtedness. The Company will not
---------------------------------
forgive principal of or interest on Mirror Indebtedness, or reduce the interest
payable thereon, unless the remaining principal amount of Mirror Indebtedness
owed by Restricted Subsidiaries to the Company, plus cash and Temporary Cash
Investments held by the Company (not on a consolidated basis), equals or exceeds
the outstanding principal amount of the Notes. The Company shall not need to
maintain Mirror Indebtedness if the conditions requiring Mirror Indebtedness no
longer exist.
56
Section 4.21 Limitation on Activities of the Special Subsidiary. The
--------------------------------------------------
Company shall not permit the Special Subsidiary to conduct any business or
operations other than the making of Temporary Cash Investments and investments
in Mirror Indebtedness of Restricted Subsidiaries, the holding of Temporary Cash
Investments, Mirror Indebtedness and cash and payment of dividends or
distributions to the Company. Without limiting the foregoing, the Company shall
not permit the Special Subsidiary to make any Investment (other than Temporary
Cash Investments and investments in Mirror Indebtedness of Restricted
Subsidiaries), make any Restricted Payment, Incur any Indebtedness, or issue any
Equity Interest or Capital Stock except to the Company. The Company shall not
sell any Equity Interest or Capital Stock of the Special Subsidiary or designate
the Special Subsidiary an Unrestricted Subsidiary.
ARTICLE V
Successor Corporation
Section 5.1 When Company May Merge, Etc. The Company shall not consolidate
---------------------------
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company unless: (i) the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume
by a supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under this Indenture; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction on a pro forma basis, either (A) the Consolidated Net
Worth of the Company or any entity or Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made will be at least equal to
the Consolidated Net Worth of the Company before such transaction or (B) the
Company would be able to incur $1.00 of Indebtedness under the first paragraph
of Section 4.3; and (iv) the Company shall have furnished to the Trustee an
Officers' Certificate and an Opinion of Counsel, each to the effect that such
and the supplemental indenture (if any) comply with this Section 5.1.
Notwithstanding the foregoing, the provisions of this Article V shall not apply
to the VoiceStream Transactions.
ARTICLE VI
Default and Remedies
Section 6.1 Events of Default. An "Event of Default" shall occur with
----------------- ----------------
respect to the Notes if:
57
(a) defaults in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable at Stated Maturity, upon
acceleration, redemption or otherwise;
(b) defaults in the payment of interest (or Liquidated Damages, if
any) on any Note when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) defaults in the performance or breach of the provisions of Article
V hereof or the failure to make or consummate an Offer to Purchase in accordance
with Section 4.11 or Section 4.12;
(d) defaults in the performance of or breaches of any covenant or
agreement of the Company in this Indenture or under the Notes (other than a
default specified in clause (a), (b) or (c) of this Section 6.1) and such
default or breach continues for a period of 30 consecutive days after written
notice to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Notes;
(e) there occurs with respect to any issue or issues of Indebtedness
of the Company or any Significant Subsidiary having an outstanding principal
amount greater than $10 million in the aggregate for all such issues of all such
Persons, whether such Indebtedness now exists or shall hereafter be created, (A)
an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and/or (B) the
failure to make a principal payment and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance or
indemnification by a Person other than the Company or a Restricted Subsidiary,
which indemnity party is solvent and has acknowledged responsibility) (treating
any deductibles, self-insurance or retention as not so covered) for the payment
of money greater than $10 million in the aggregate for all such final judgments
or orders shall be rendered against the Company or any Significant Subsidiary
and shall not be paid or discharged or bonded over, and there shall be any
period of 30 consecutive days following entry of the final judgment or order
that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged or bonded over to exceed $10 million
during which a stay of enforcement of such final judgment or order by reason of
a pending appeal or otherwise shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant Subsidiary in
an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
58
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.
Section 6.2 Acceleration. If an Event of Default (other than an Event of
------------
Default specified in clause (g) or (h) of Section 6.1 that occurs with respect
to the Company) occurs and is continuing under this Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal amount of, premium and Liquidated Damages, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal amount of, premium and Liquidated
Damages, if any, and accrued interest shall be immediately due and payable. In
the event of a declaration of acceleration because an Event of Default set forth
in clause (e) of Section 6.1 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (e) shall be
remedied or cured by the Company or the relevant Significant Subsidiary or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) of this Section 6.2 occurs with respect to the
Company, the principal amount of, premium and Liquidated Damages, if any, and
accrued interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes, by written notice to the Company and to the Trustee may waive
all past Defaults and rescind and annul such declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of
the principal amount of, premium and Liquidated Damages, if any, and interest on
the Notes that have become due solely by such declaration of acceleration have
been cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
Section 6.3 Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium and Liquidated
Damages, if any, or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
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Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, 6.7 and 9.2,
-----------------------
the Holders of at least a majority in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium and Liquidated Damages, if any, or interest on any Note as
specified in clause (a) or (b) of Section 6.1 (including in connection with an
Offer to Purchase) or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Note 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 Event of Default or impair any right
consequent thereto.
Section 6.5 Control by Majority. The Holders of at least a majority in
-------------------
aggregate principal amount of the outstanding Notes, by notice to the Trustee,
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee; provided that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders
of Notes pursuant to this Section 6.5.
Section 6.6 Limitation on Suits. A Holder may not institute any
-------------------
proceedings, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(iii) such Holder or Holders have offered the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes have not given the Trustee a
direction that is inconsistent with such written request.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
------------------------------------
provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium or Liquidated Damages, if any, or interest
on such Holder's Note on or after the
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respective due dates expressed on such Note (including in a notice with respect
to an Offer to Purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default in payment
--------------------------
of principal, premium and Liquidated Damages, if any, or interest specified in
clause (a) or (b) of Section 6.1 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor of the Notes for the whole amount of principal,
premium and Liquidated Damages, if any, and accrued interest remaining unpaid,
together with interest on overdue principal, premium and Liquidated Damages, if
any, and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate specified in the
Notes, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee pursuant to Section 7.6 hereof.
Section 6.9 Trustee May File Proofs of Claim. The Trustee may file such
--------------------------------
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.6)
and the Holders allowed in any judicial proceedings relative to the Company (or
any other obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
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 to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.6. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money pursuant to this
----------
Article VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.6,
including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the reasonable
costs and expenses of collection;
Second: to Holders for amounts then due and unpaid for principal
amount of, premium and Liquidated Damages, if any, and interest on the
Notes in respect of which or for the benefit of which such money has
been collected, ratably,
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without preference or priority of any kind, according to the amounts
due and payable on such Notes for principal, premium and Liquidated
Damages, if any, and interest, respectively; and
Third: to the Company or any other obligors of the Notes, as
their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any
---------------------
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 of this Indenture, or a suit by Holders
of more than 10% in principal amount of the outstanding Notes.
Section 6.12 Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every 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
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.13 Rights and Remedies Cumulative. Except as otherwise provided
------------------------------
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Notes in Section 2.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.14 Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article VI or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
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ARTICLE VII
Trustee
Section 7.1 Rights of Trustee. (a) Except during the continuance of an
-----------------
Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth and correctness of the statements and
certificates or opinions furnished to it and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the
outstanding Notes, relating to the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to
the Notes.
(d) Subject to TIA Sections 315(a) through (d):
(i) the Trustee may rely upon any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document;
63
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall conform
to Section 10.4. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(iv) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided that the Trustee's conduct does not constitute
negligence or bad faith;
(v) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, 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;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed), may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(vii) the Trustee may consult with counsel and the advice of
such counsel or any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(viii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(ix) the Trustee may execute any of the trusts or powers
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
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(x) the Trustee may conclusively rely as to the identity and
addresses of Holders and other matters contained therein on the Security
Register maintained by the Registrar pursuant to Section 2.3 hereof and shall
not be affected by notice to the contrary; and
(xi) unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
Section 7.2 Individual Rights of Trustee. The Trustee, in its individual or
----------------------------
any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it
were not the Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to TIA Sections 310(b) and 311.
Section 7.3 Trustee's Disclaimer. The Trustee (i) shall not be responsible
--------------------
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, (ii) shall not be accountable for the Company's use of the
proceeds from the Notes, (iii) shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and (iv) shall not be responsible for any statement in this Indenture, including
the recitals contained herein, or in any document issued in connection with the
sale of the Notes or the Exchange Offer, or in the Notes other than its
certificate of authentication.
Section 7.4 Notice of Default. If any Default or any Event of Default
-----------------
occurs and is continuing and if such Default or Event of Default is known to the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent
provided in TIA Section 313(c) notice of the Default or Event of Default within
90 days after it occurs, unless such Default or Event of Default has been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders.
The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) a default described in Section 6.1(a) or (b) so long
as the Trustee is the Paying Agent or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or a Responsible
Officer shall have obtained actual knowledge.
Section 7.5 Reports by Trustee to Holders. Within 60 days after each June
-----------------------------
30, beginning with June 30, 2000, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such June 30, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or of any delisting thereof.
65
Section 7.6 Compensation and Indemnity. The Company shall pay to the
--------------------------
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, expenses and
advances incurred or made by it in addition to compensation for its services.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense (including, without limitation,
reasonable attorneys' fees) incurred by it without negligence or bad faith on
its part in connection with the acceptance or administration of this Indenture
and its duties under this Indenture and the Notes, including the costs and
expenses of defending itself against any claim or liability and of complying
with any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture and
the Notes. 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 cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay reasonable fees and expenses of such
counsel. The Company need not pay for any settlements made without its consent;
provided that such consent shall not be unreasonably withheld. The Company need
not reimburse any expense or indemnity against any loss or liability incurred by
the Trustee through negligence or bad faith.
The Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee, in its capacity as Trustee, for any
amount owing it pursuant to this Section 7.6, except money or property held in
trust to pay principal of, premium and Liquidated Damages, if any, and interest
on particular Notes.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section 6.1,
the expenses and the compensation for the services (including the reasonable
fees and expenses of its agents and counsel) will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under this Section 7.6 out of the estate in any such
proceeding, shall be denied for any reason, other than solely because of the
misconduct of the Trustee or its Agents, payment of the same shall be secured by
a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
The provisions of this Section 7.6 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
66
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.7 Replacement of Trustee. A resignation or removal of the Trustee
----------------------
and appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.7.
The Trustee may resign by so notifying the Company in writing at least
30 days prior to the date of the proposed resignation. The Holders of a
majority in aggregate principal amount of the outstanding Notes may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.9;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in aggregate principal amount of the outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company. If the successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.6, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) 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 the Trustee fails to comply with Section 7.9, any Holder who
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect provided in this Section.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.7, the Company's obligation under Section 7.6 shall continue for the benefit
of the retiring Trustee.
Section 7.8 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 or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
Section 7.9 Eligibility. Any Trustee serving hereunder shall be a bank or
-----------
trust company, within or without the state, which is authorized by law to
perform all of the duties imposed upon it hereby and which either (i) has a
reported capital and surplus aggregating at least $25,000,000 or (ii) is a
Wholly Owned Subsidiary of a bank, a trust company or a bank holding company
having a reported capital and surplus aggregating at least $25,000,000, and
shall at all times satisfy the requirements of TIA Section 310(a)(1).
Section 7.10 Money Held in Trust. The Trustee shall not be liable for
-------------------
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article VIII of this Indenture.
ARTICLE VIII
Discharge of Indenture
Section 8.1 Termination of Company's Obligations. Except as otherwise
------------------------------------
provided in this Section 8.1, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder; or
(ii) (A) the Notes have become due and payable, mature within one
year or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of redemption,
(B) the Company irrevocably deposits in trust with the Trustee during such one-
year period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the benefit of
the Holders for that purpose, money or U.S. Government Obligations sufficient
(in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest thereon, to
pay principal, premium and Liquidated Damages, if any, and interest on the Notes
to maturity or redemption, as the case may be, and to pay all other sums payable
by it hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D) such
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the
68
Company is a party or by which it is bound and (E) the Company has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.6 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 4.1, 4.2,
7.6, 7.7, 8.4, 8.5 and 8.6 shall survive until the Notes are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.6, 8.4,
8.5 and 8.6 shall survive. After any such irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving obligations
specified in this Section 8.1.
Section 8.2 Defeasance and Discharge of Indenture. The Company will be
-------------------------------------
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the date of the deposit referred to
in clause (A) of this Section 8.2, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same, except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii) the
Company's obligations under Section 4.2, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Holders as
beneficiaries of this Indenture with respect to the property so deposited with
the Trustee payable to all or any of them, provided that the following
conditions shall have been satisfied:
(A) the Company has deposited with the Trustee, in trust,
money and/or U.S. Government Obligations that through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment referred to in this
clause (A), money in an amount 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 the principal of, premium
and Liquidated Damages, if any, and accrued interest on the Notes on the Stated
Maturity of such payments in accordance with the terms of this Indenture and the
Notes and shall have irrevocably instructed the Trustee to apply such money to
the payment of such principal, premium and Liquidated Damages, if any, and
interest;
(B) the Company has delivered to the Trustee (i) either (x)
an Opinion of Counsel to the effect that Holders will not recognize income, gain
or loss for federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of
the Internal Revenue Service to the same effect unless there has been a change
in applicable federal income tax law after the date hereof such that a ruling is
no longer required or (y) a ruling directed to the Trustee
69
received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute;
(C) immediately after giving effect to such deposit on a pro
forma basis no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and
be continuing on the date of such deposit or during the period ending on the
123rd day after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(D) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Notes will not be delisted as a result of such
deposit, defeasance and discharge; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.2 have been complied with.
Section 8.3 Defeasance of Certain Obligations. The Company may omit to
---------------------------------
comply with any term, provision or condition set forth in clause (iii) of
Section 5.1 and Sections 4.3 through 4.17, in each case with respect to the
outstanding Notes if:
(i) the Company has deposited with the Trustee, in trust, money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment referred to in this clause
(i), money in an amount 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 the principal of, premium and Liquidated
Damages, if any, and accrued interest on the Notes on the Stated Maturity of
such payments in accordance with the terms of this Indenture and the Notes and
shall have irrevocably instructed the Trustee to apply such money to the payment
of such principal, premium, Liquidated Damages and interest;
(ii) immediately after giving effect to such deposit on a pro
forma basis no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and
be continuing on the date of such deposit or during the period ending on the
123rd day after the date of such deposit, and such deposit shall
70
not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(iii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (B) the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and (C) after the
passage of 123 days following the deposit, the trust funds will not be subject
to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15
of the New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute;
(iv) at such times the Notes are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.3 have been complied with.
Section 8.4 Application of Trust Money. Subject to Sections 8.5 and 8.6,
--------------------------
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium and Liquidated Damages, if any, and interest on the Notes;
but such money need not be segregated from other funds except to the extent
required by law.
Section 8.5 Repayment to Company. Subject to Sections 7.6, 8.1, 8.2 and
--------------------
8.3, the Trustee and the Paying Agent shall promptly pay to the Company upon
request set forth in an Officers' Certificate any excess money held by them at
any time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium and
Liquidated Damages, if any, or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
--------
payment may cause to be published at the expense of the Company once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
71
Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to
-------------
apply any money or U.S. Government Obligations in accordance with Section 8.1,
8.2 or 8.3, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.1, 8.2 or 8.3, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.1, 8.2 or 8.3,
as the case may be; provided that, if the Company has made any payment of
principal of, premium and Liquidated Damages, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments, Supplements and Waivers
Section 9.1 Without Consent of Holders. The Company, when authorized by
--------------------------
a Board Resolution of its Board of Directors, and the Trustee may amend or
supplement this Indenture or the Notes without notice to or the consent of any
Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(6) to add one or more Subsidiary guarantees on the terms required by
this Indenture; or
(7) to make any change that does not adversely affect the rights of
any Holder.
Section 9.2 With Consent of Holders. Subject to Sections 6.4 and 6.7 and
-----------------------
without prior notice to the Holders, the Company, when authorized by its Board
of Directors (as evidenced by a Board Resolution), and the Trustee may amend
this Indenture and the Notes with the written consent of the Holders of not less
than a majority of the aggregate principal amount of the Notes then outstanding,
and the Holders of not less than a majority of the aggregate principal amount of
the Notes then outstanding by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the Notes.
72
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected, an amendment of waiver, including a waiver
pursuant to Section 6.4, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, on Note;
(ii) reduce the principal amount or premium and Liquidated
Damages, if any, or interest on, any Note;
(iii) change the place or currency of payment of principal of,
or premium and Liquidated Damages, if any, or interest on, any Note;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity (or, in the case of redemption, on
or after the Redemption Date) of any Note;
(v) reduce the above-stated percentage of outstanding Notes
the consent of whose Holders is necessary to modify or amend this Indenture;
(vi) waive a default in the payment of principal of, premium
and Liquidated Damages, if any, or interest on the Notes;
(vii) reduce the percentage of aggregate principal amount of
outstanding Notes the consent of whose Holders is necessary for waiver of
compliance with certain provisions of this Indenture or for waiver of certain
default; or
(viii) modify any of the provisions of this Section 9.2, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. 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.
Section 9.3 Revocation and Effect of Consent. Until an amendment or waiver
--------------------------------
becomes effective, a consent to it by a Holder is an continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the Note of the consenting Holder, even if notation of the
consent is not made on any Note. However, any such Holder or subsequent Holder
may revoke the consent as to its Note or portion of its Note. Such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date
73
the amendment, supplement or waiver becomes effective. An amendment, supplement
or waiver shall become effective on receipt by the Trustee of written consents
from the Holders of the requisite percentage of aggregate principal amount of
the outstanding Notes.
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. If a record date is fixed, then notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
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 Holder unless it is of the type described in any of clauses (i)
through (vi) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (vi) of Section 9.2, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of the consenting Holder.
Section 9.4 Notation on or Exchange of Notes. If an amendment, supplement
--------------------------------
or waiver changes the terms of a Note, the Trustee may require the Holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note about the changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Note thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be entitled
-------------------------------
to receive, and shall be fully protected in relying upon, in addition to the
documents required by Section 10.3 hereof, an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.6 Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article IX shall conform to the requirements
of the TIA as then in effect.
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ARTICLE X
Miscellaneous
Section 10.1 Trust Indenture Act. This Indenture is subject to the
-------------------
provisions of the TIA that are required to be a part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
Section 10.2 Notices. Any notice or communication shall be sufficiently
-------
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery addressed as follows:
if to the Company:
-----------------
Omnipoint Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with (in the case of any notice under Article VI) a copy to: (which
-----------------------------------------------------------
shall not constitute notice)
Piper & Marbury, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
if to the Trustee:
-----------------
HSBC Bank USA
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
75
Any notice or communication to a Holder shall be mailed by first class
mail (certified or registered, return receipt requested) to its address shown on
the register kept by the Registrar and shall be sufficiently given to such
Holder if so mailed or delivered within the time presented. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.2, it is duly given, whether or not the
addressee receives it.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.3 Certificate and Opinion as to Conditions Precedent. Upon any
--------------------------------------------------
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate 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
(ii) an Opinion of Counsel reasonably satisfactory to the
Trustee stating that, in the opinion of such Counsel, all such conditions
precedent have been complied with.
Section 10.4 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:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(iii) 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
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such other
opinions as the Trustee may
76
reasonably request; 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 10.5 Acts of Holders. (a) Any request, demand, authorization,
---------------
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The ownership of Notes shall be proved by the Security Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future Holder
of the same Note or the Holder of every Note issued upon the transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 10.6 Rules by Trustee, Paying Agent or Registrar. The Trustee may
-------------------------------------------
make reasonable rules for action by or at a meeting of Holders. The Paying Agent
or Registrar may make reasonable rules for is functions.
Section 10.7 Payment Date Other Than a Business Day. If an Interest Payment
--------------------------------------
Date, Redemption Date, Payment Date for an Offer to Purchase, Stated Maturity or
date of maturity of any Note shall not be a Business Day at any place of
payment, then payment of principal of, premium and Liquidated Damages, if any,
or interest on such Note, as the case may be, need not be made on such date, but
may be made on the next succeeding Business Day at such place of payment with
the same force and effect as if made on the Interest Payment Date, Payment Date
for an Offer to Purchase, or Redemption Date, or at the Stated Maturity or date
of maturity of such Note; provided that no interest shall accrue for the period
from and after such Interest Payment Date, Payment Date for an Offer to
Purchase, Redemption Date, Stated Maturity or date of maturity, as the case may
be.
Section 10.8 Governing Law. This Indenture and the Notes shall be governed
-------------
by the laws of the State of New York. The Trustee, the Company and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Indenture or the
Notes.
Section 10.9 No Adverse Interpretation of Other Agreements. This Indenture
---------------------------------------------
may not be used to interpret another indenture, loan or debt agreement of the
Company or any Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
77
Section 10.10 No Recourse Against Others. No recourse for the payment of
--------------------------
the principal of, premium and Liquidated Damages, if any, or interest on any of
the Notes, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any of the Notes, or because of the creation
of any Indebtedness represented thereby, shall be had against any incorporator
or against any past, present or future partner, shareholder, other equityholder,
officer, director, employee or controlling person, as such, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and a consideration for, the execution of this Indenture and the
issue of the Notes.
Section 10.11 Successors. All agreements of the Company in this Indenture
----------
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 10.12 Duplicate Originals. The parties may sign any number of
-------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 10.13 Separability. In case any provision in this Indenture or in
------------
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents,
--------------------------------
Cross Reference Table and headings of the Article and 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 and
provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
OMNIPOINT CORPORATION,
as Issuer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title President
HSBC BANK USA,
as Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
79