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EXHIBIT 4.1
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SPECTRASITE HOLDINGS, INC.,
Issuer
12% Senior Discount Notes Due 2008
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INDENTURE
Dated as of June 26, 1998
xxxxxxxxxxxxxxxxxxxx
Xxxxxx Xxxxxx Trust Company of New York,
Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.3. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.5. One Class of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II
The Notes
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.4. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.5. Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.6. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.7. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.8. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.9. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.11. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III
Redemption
SECTION 3.1. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.6. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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ARTICLE IV
Covenants
SECTION 4.1. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.2. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.3. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.4. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.5. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.7. Limitation on Sale of Assets and Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.8. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.9. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.10. Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.11. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.12. Limitation on Sale/Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.13. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.14. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.15. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.16. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.17. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.18. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.19. Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE V
Successor Issuer
SECTION 5.1. When the Issuer May Merge or Transfer Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.7. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.12. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.9. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.11. Preferential Collection of Claims Against Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.2. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.3. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.4. Repayment to Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.5. Indemnity for Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.6. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.2. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.4. Revocation and Effect of Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.5. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.6. Trustee to Sign Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.7. Payment for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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ARTICLE X
Miscellaneous
SECTION 10.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.3. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.4. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.6. When Notes Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.8. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.9. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.12. Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.13. Variable Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.14. Qualification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.15. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.16. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Rule 144A/Regulation S Appendix
Exhibit 1 to Appendix - Form of Initial Note
Exhibit A - Form of Exchange Note and Private Exchange Note
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INDENTURE, dated as of June 26, 1998, between SPECTRASITE
HOLDINGS, INC., a Delaware corporation (as further defined below, the
"Issuer"), and UNITED STATES TRUST COMPANY OF NEW YORK, a national banking
association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Issuer's
$225,238,000 aggregate principal amount at maturity 12% Senior Discount Notes
Due 2008 (the "Initial Notes") and, if and when issued in exchange for Initial
Notes as provided in the Registration Rights Agreement (as defined in the
Appendix hereto), the Issuer's Series B 12% Senior Discount Notes Due 2008 (the
"Exchange Notes") and, if and when issued pursuant to a private exchange for
Initial Notes, the Issuer's Series C 12% Senior Discount Notes Due 2008 (the
"Private Exchange Notes," together with the Initial Notes and the Exchange
Notes, the "Notes"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Accreted Value" means, as of any date (the "Specified Date"),
with respect to each $1,000 principal amount at maturity of Notes:
(i) if the Specified Date is one of the following dates (each
a "Semi-Annual Accrual Date"), the Accreted Value will equal the
amount set forth opposite such date below:
ACCRETED
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SEMI-ANNUAL ACCRUAL DATE VALUE
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June 26, 1998 . . . . . . . . . . . . . . . . . . . $ 554.97
January 15, 1999 . . . . . . . . . . . . . . . . . 591.90
July 15, 1999 . . . . . . . . . . . . . . . . . . . 627.41
January 15, 2000 . . . . . . . . . . . . . . . . . 665.06
July 15, 2000 . . . . . . . . . . . . . . . . . . . 704.96
January 15, 2001 . . . . . . . . . . . . . . . . . 747.26
July 15, 2001 . . . . . . . . . . . . . . . . . . . 792.09
January 15, 2002 . . . . . . . . . . . . . . . . . 839.62
July 15, 2002 . . . . . . . . . . . . . . . . . . . 890.00
January 15, 2003 . . . . . . . . . . . . . . . . . . 943.40
July 15, 2003 . . . . . . . . . . . . . . . . . . . 1,000.00
(ii) if the Specified Date occurs between two Semi-Annual
Accrual Dates, the Accreted Value will equal the sum of (A) the
Accreted Value for the Semi-Annual Accrual Date immediately preceding
such Specified Date and (B) an amount equal to the product of (1) the
Accreted Value for the immediately following Semi-Annual Accrual Date
less the Accreted Value for the immediately preceding Semi-Annual
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Accrual Date multiplied by (2) a fraction, the numerator of which is
the number of days elapsed from the immediately preceding Semi-Annual
Accrual Date to the Specified Date, using a 360-day year of twelve
30-day months, and the denominator of which is 180; or
(iii) if the Specified Date occurs after the last
Semi-Annual Accrual Date, the Accreted Value will equal $1,000.00.
"Adjusted EBITDA" as of any date of determination means the
sum of (i) the EBITDA of the Issuer for the four most recent full fiscal
quarters ending prior to such date, less the Issuer's Tower EBITDA for such
four-quarter period, plus (ii) the product of four times the Issuer's Tower
EBITDA for the most recent quarterly period, which Tower EBITDA for the most
recent quarterly period shall be determined on a pro forma basis after giving
effect to (A) all acquisitions or dispositions of assets made by the Issuer and
its Subsidiaries from the beginning of such quarter through and including such
date of determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such quarter,
(B) any new lease or Site Management Contract entered into by the Issuer or any
Restricted Subsidiary in the ordinary course of business with respect to Tower
Assets from the beginning of such quarter through and including such date of
determination as if such new lease or Site Management Contract had been signed
at the beginning of such quarter and the rent required by the terms of such
lease or Site Management Contract for such quarter had been received by the
Issuer or a Restricted Subsidiary during such quarter, (C) the loss from the
beginning of such quarter through and including such date of determination of
any lease or Site Management Contract of the Issuer or a Restricted Subsidiary
with respect to any Tower Assets that was in effect on the first day of such
quarter as if such lease or Site Management Contract had not been in effect
during such quarter and no rent under such lease had been received during such
quarter and (D) any rent increases received by the Issuer or any Restricted
Subsidiary from the beginning of such quarter through and including such date
of determination related to leases or Site Management Contracts on Tower Assets
as if such increased rental rate had been in effect at the beginning of such
quarter and such increased amount of rent had been received by the Issuer or a
Restricted Subsidiary during such quarter. For purposes of making the
computation referred to above, (1) acquisitions that have been made by the
Issuer or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
reference period or subsequent to such reference period and on or prior to the
date of determination shall be deemed to have occurred on the first day of the
reference period and EBITDA for such reference period shall be calculated
without giving effect to clause (ii) of the proviso set forth in the definition
of Consolidated Net Income, and (2) the EBITDA attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the date of determination shall be excluded.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or
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indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of the covenants in this Indenture,
"Affiliate" shall also mean any beneficial owner of Capital Stock representing
10% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of the Issuer or of rights or warrants to purchase such Capital Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Issuer or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Issuer
or a Restricted Subsidiary), (ii) all or substantially all the assets of any
division or line of business of the Issuer or any Restricted Subsidiary or
(iii) any other assets of the Issuer or any Restricted Subsidiary outside of
the ordinary course of business of the Issuer or such Restricted Subsidiary
(other than, in the case of (i), (ii) and (iii) above, (v) a disposition by a
Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary
to a Wholly Owned Subsidiary, (w) for purposes of Section 4.7 only, a
disposition that constitutes a Restricted Payment permitted by Section 4.5, (x)
a disposition of assets with a fair market value of less than $500,000, (y)
grants of leases or licenses in the ordinary course of business, and (z)
disposals of cash equivalents).
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of
the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the product of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Board of Directors" means the Board of Directors of the
Issuer or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall
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be the capitalized amount of such obligation determined in accordance with
GAAP; and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the
following events:
(i) prior to the first public offering of common
stock of the Issuer, the Permitted Holders cease to be the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of a majority in the aggregate of the total
voting power of the Voting Stock of the Issuer, whether as a result of
issuance of securities of the Issuer, any merger, consolidation,
liquidation or dissolution of the Issuer, any direct or indirect
transfer of securities by the Issuer or otherwise (for purposes of
this clause (i) and clause (ii) below, the Permitted Holders shall be
deemed to beneficially own any Voting Stock of an entity (the
"specified entity") held by any other entity (the "parent entity") so
long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, in the aggregate a majority of the voting
power of the Voting Stock of the parent entity);
(ii) subsequent to the first public offering of
common stock of the Issuer, any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in
clause (i) above, except that for purposes of this clause (ii) such
person shall be deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly
or indirectly, of more than 35% of the total voting power of the
Voting Stock of the Issuer; provided, however, that the Permitted
Holders "beneficially own" (as defined in clause (i) above), directly
or indirectly, in the aggregate a lesser percentage of the total
voting power of the Voting Stock of the Issuer than such other person
and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board
of Directors of the Issuer (for the purposes of this clause (ii), such
other person shall be deemed to beneficially own any Voting Stock of a
specified entity held by a parent entity, if such other person is the
beneficial owner (as defined in this clause (ii)), directly or
indirectly, of more than 35% of the voting power of the Voting Stock
of such parent entity and the Permitted Holders "beneficially own" (as
defined in clause (i) above), directly or indirectly, in the aggregate
a lesser percentage of the voting power of the Voting Stock of such
parent entity and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of
the board of directors of such parent entity);
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(iii) during any period of two consecutive years
(or, in the case this event occurs within the first two years after
the Issue Date, such shorter period as shall have begun on the Issue
Date), individuals who at the beginning of such period constituted the
Board of Directors of the Issuer (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the shareholders of the Issuer was approved by a vote of a
majority of the directors of the Issuer then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Issuer then in office;
(iv) the merger or consolidation of the Issuer with
or into another Person or the merger of another Person with or into
the Issuer, or the sale of all or substantially all the assets of the
Issuer to another Person (other than a Permitted Holder or a Person
that is controlled by the Permitted Holders), and, in the case of any
such merger or consolidation, the securities of the Issuer that are
outstanding immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of the Issuer
are changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving corporation that represent immediately after such
transaction, at least a majority of the aggregate voting power of the
Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Completed Tower" means a wireless transmission tower with, as
of any date of determination, (i) at least one anchor tenant that has executed
a definitive lease with the Issuer or any of its Restricted Subsidiaries and
(ii) capacity for at least three tenants.
"Consolidated Indebtedness" as of any date of determination
means (without duplication) (i) the total amount of Indebtedness of the Issuer
and its Restricted Subsidiaries, (ii) the total amount of Indebtedness of any
other Person, to the extent that such Indebtedness has been Guaranteed by the
Issuer or one or more of its Restricted Subsidiaries, (iii) the aggregate
liquidation value of all Disqualified Stock of the Issuer and all preferred
stock of Restricted Subsidiaries of the Issuer, in each case, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Issuer and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent incurred by the Issuer or its Restricted Subsidiaries,
without duplication, (i) interest expense attributable to capital leases and to
leases constituting part of a Sale/Leaseback Transaction, (ii) amortization of
debt discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs associated with Hedging Obligations (including amortization of fees),
(vii) Preferred Stock dividends paid in respect of all Preferred Stock of the
Issuer and its Subsidiaries held by Persons other than the Issuer or a Wholly
Owned
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Subsidiary, (viii) interest incurred in connection with Investments in
discontinued operations, (ix) interest accruing on any Indebtedness of any
other Person to the extent such Indebtedness is Guaranteed by (or secured by
the assets of) the Issuer or any Restricted Subsidiary and (x) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than the Issuer) in connection with Indebtedness
Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Issuer and its consolidated Subsidiaries; provided,
however, that there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person (other
than the Issuer) if such Person is not a Restricted Subsidiary, except
that (A) subject to the exclusion contained in (iv) below, the
Issuer's equity in the net income of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Issuer or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and
(B) solely for purposes of calculating the Indebtedness to Adjusted
EBITDA Ratio, the Issuer's equity in a net loss of any such Person
(other than an Unrestricted Subsidiary) for such period shall be
included in determining such Consolidated Net Income,
(ii) any net income (loss) of any Person acquired
by the Issuer or a Subsidiary in a pooling of interests transaction
for any period prior to the date of such acquisition,
(iii) any net income of any Restricted Subsidiary
if such Restricted Subsidiary is subject to restrictions (other than
any restrictions contained in the New Credit Facility), directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Issuer,
except that (A) subject to the exclusion contained in (iv) below the
Issuer's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Issuer or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to another
Restricted Subsidiary, to the limitation contained in this clause) and
(B) solely for purposes of calculating the Indebtedness to Adjusted
EBITDA Ratio, the Issuer's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income,
(iv) any gain or loss realized upon the sale or
other disposition of any assets of the Issuer, its consolidated
Subsidiaries or any other Person (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise disposed of
in the ordinary course of business and any gain or loss realized upon
the sale or other disposition of any Capital Stock of any Person,
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(v) any net income or loss of any Unrestricted
Subsidiary, whether or not distributed to the Issuer or one of its
Subsidiaries,
(vi) any extraordinary gain or loss, and
(vii) the cumulative effect of a change in
accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.5 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries
to the Issuer or a Restricted Subsidiary to the extent such dividends,
repayments or transfers increase the amount of Restricted Payments permitted
under such covenant pursuant to clause (a)(3)(D) thereof.
"Consolidated Tangible Assets" means, with respect to the
Issuer, the total consolidated tangible assets of the Issuer and its Restricted
Subsidiaries, as shown on the most recent internal consolidated balance sheet
of the Issuer and such Restricted Subsidiaries calculated on a consolidated
basis in accordance with GAAP.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values as to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part, in each case on or prior to the 91st day after
the Stated Maturity of the Notes; provided, however, that any Capital Stock
that would not constitute Disqualified 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 91st day after the Stated Maturity of the Notes shall
not constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions described under Section 4.9
and Section 4.7.
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Expense, (b) all income tax
expense of the Issuer and its consolidated Restricted Subsidiaries, (c)
depreciation expense of the Issuer and its consolidated Restricted
Subsidiaries, (d) amortization expense of the Issuer and its consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period), (e) all other non-cash
charges of the Issuer and its consolidated Restricted
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Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future
period), and (f) any premium or penalty paid in connection with repurchasing,
redeeming, retiring, defeasing or acquiring any Indebtedness prior to maturity
to the extent deducted in calculating Consolidated Net Income, in each case for
such period. Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depreciation and amortization and non-cash
charges of, a Restricted Subsidiary shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Issuer by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders, without in any event giving effect to any
restrictions or limitations contained in the New Credit Facility.
"Equity Offering" means a public or private issuance by the
Issuer of common stock of the Issuer for cash.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and 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 or other obligation of such 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 the purpose 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, however, 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.
"Hedging Obligations" of any Person means the actual
obligations of such Person pursuant to any Interest Rate Agreement or Currency
Agreement.
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"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(i) the principal in respect of (A) indebtedness
of such Person for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment
of which such Person is responsible or liable, including, in each
case, any premium on such indebtedness to the extent such premium has
become due and payable;
(ii) all Capitalized Lease Obligations of such
Person and all Attributable Debt in respect of Sale/Leaseback
Transactions entered into by such Person;
(iii) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional
sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business);
(iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction (other than obligations with
respect to letters of credit and other contingent liabilities (but
only to the extent such contingent liabilities are not reflected as
liabilities on the consolidated balance sheet of such Person) securing
obligations (other than obligations described in clauses (i) through
(iii) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following payment on the letter of credit);
(v) the amount of all obligations of such Person
with respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary of such Person,
the liquidation preference with respect to, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons and all dividends of other
Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee;
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10
(vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to
be the lesser of the value of such property or assets or the amount of
the obligation so secured; and
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
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 or the
accreted value thereof, in the case of Indebtedness issued with original issue
discount, and the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such date.
"Indebtedness to Adjusted EBITDA Ratio" as of any date of
determination means the ratio of (i) Consolidated Indebtedness as of such date
to (ii) Adjusted EBITDA.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
Person) or other extension of credit (including by way of Guarantee or similar
arrangement) 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,
Indebtedness or other similar instruments issued by such Person. For purposes
of the definitions of "Unrestricted Subsidiary" and "Restricted Payment" and
Section 4.5, (i) "Investment" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the fair market value of the
net assets of any Subsidiary of the Issuer at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Issuer's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Issuer's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time that
such Subsidiary is so re-designated a Restricted Subsidiary; and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as
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determined in good faith by the Board of Directors and evidenced by a
resolution of such Board of Directors.
"Issue Date" means the date on which the Notes are originally
issued.
"Legal Holiday" has the meaning ascribed in Section 10.8.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non cash form) therefrom, in each case net of (i) all
legal, title, accounting, investment banking and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (ii) all
payments made on any Indebtedness which is secured by any assets subject to
such Asset Disposition, in accordance with the terms of any Lien upon or other
security arrangement of any kind with respect to such assets, or which must by
its terms, or in order to obtain a necessary consent to such Asset Disposition,
or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries or joint ventures as a
result of such Asset Disposition, (iv) the deduction of appropriate amounts to
be provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the assets disposed of in such Asset Disposition
and retained by the Issuer or any Restricted Subsidiary after such Asset
Disposition, and (v) any reserves established in respect of the sales price of
such asset for post-closing adjustments, indemnification purposes or employee
termination expenses.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, printing costs, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
and expenses actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result thereof.
"New Credit Facility" means that certain credit facility to be
entered into by a wholly owned subsidiary of the Issuer, SpectraSite
Communications, Inc. ("SCI"), pursuant to a commitment letter from Credit
Suisse First Boston, New York branch, to SCI dated December 22, 1997, which has
been renewed through December 31, 1998, including any collateral documents,
instruments and agreements executed in connection therewith, and the term New
Credit Facility shall also include any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any credit
facilities that replace,
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refund or refinance any part of the loans, other credit facilities or
commitments thereunder, including any such replacement, refunding or
refinancing facility that increases the amount borrowable thereunder or alters
the maturity thereof.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Issuer nor any Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with
respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Issuer or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Offering Circular" means the Offering Circular dated June 23,
1998 relating to the Initial Notes; provided that after the issuance of
Exchange Notes, all references herein to "Offering Circular" shall be deemed
references to the prospectus contained in the registration statement relating
to the Exchange Notes.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Issuer, as applicable.
"Officer's Certificate" means a certificate signed by any
Officer.
"Opinion of Counsel" means a written opinion from Dow, Xxxxxx
& Xxxxxxxxx, PLLC, or any other legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Issuer or the
Trustee.
"Permitted Business" means any business conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date and any other business
related, ancillary or complementary to any such business.
"Permitted Holders" means any or all of Xxxxxxx X. Xxxxx, Xxx
X. Xxxxxx, Xxxxxxx Equity Partners, L.P., X.X. Xxxxxxx III, L.P., Whitney
Strategic Partners III, L.P., Xxxxxx-Xxxxxx Media Partners, L.P., Kitty Hawk
Capital Limited Partnership, III, Kitty Hawk Capital Limited Partnership, IV,
Eagle Creek Capital, L.L.C., The North Carolina Enterprise Fund, L.P., Xxxxxx
Family Limited Partnership, and their respective Affiliates.
"Permitted Investment" means an Investment by the Issuer or
any Restricted Subsidiary in (i) the Issuer, a Wholly Owned Subsidiary or a
Person which will, upon the making of such Investment, become a Wholly Owned
Subsidiary; provided, however, that a loan or other extension of credit by the
Issuer or a Restricted Subsidiary to a Restricted Subsidiary that is not a
Wholly Owned Subsidiary also will constitute a "Permitted Investment"; and
provided further, however, that a Permitted Business is the primary business of
the Person in which any such Investment is made; and (ii) another Person if as
a result of
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such Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Issuer or a
Restricted Subsidiary; provided, however, that such Person's primary business
is a Permitted Business; (iii) Temporary Cash Investments; (iv) receivables
owing to the Issuer or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include
such concessionary trade terms as the Issuer or any such Restricted Subsidiary
deems reasonable under the circumstances; (v) payroll, travel and similar
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business; (vi) loans or advances to employees made in
the ordinary course of business consistent with past practice of the Issuer or
such Restricted Subsidiary, but in any event not to exceed $2.0 million in the
aggregate outstanding at any one time; (vii) stock, obligations or securities
received in settlement of debts created in the ordinary course of business and
owing to the Issuer or any Restricted Subsidiary or in satisfaction of
judgments; (viii) any Person to the extent such investment represents the
non-cash portion of the consideration received for an Asset Disposition as
permitted pursuant to Section 4.7; (ix) Capital Stock of the Issuer or any
Restricted Subsidiary purchased, redeemed or otherwise acquired or retired for
value from members of the Issuer's management or employees, but in any event
not to exceed $500,000 in the aggregate in any twelve-month period; (x) other
Investments in Permitted Businesses not to exceed, at any one time outstanding
(each such Investment being measured as of the date made and without giving
effect to subsequent changes in value), the greater of (A) $5.0 million and (B)
5% of the Issuer's Consolidated Tangible Assets, (xi) any Interest Rate
Agreement or Currency Agreement, (xii) any acquisition of assets solely in
exchange for the issuance of Capital Stock (other than Disqualified Stock) of
the Issuer, (xiii) prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits and (xiv) deposits of proceeds from Asset Dispositions with a
"qualified intermediary," "qualified trustee" or similar person for purposes of
facilitating a "like-kind" exchange made in accordance with the applicable
provisions of the Internal Revenue Code of 1986, as amended; provided, however,
that the making of any Permitted Investment pursuant to this clause (xiv) will
not in any manner violate Section 4.7.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits or cash or United
States government bonds to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case incurred in the ordinary course of business;
(b) Liens imposed by law, such as carriers', warehousemen's, landlords' and
mechanics' Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceeding, or judgment Liens not giving rise to an Event
of Default so long as any appropriate legal proceedings which may have been
duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired; (c) Liens for property
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taxes not yet subject to penalties for non-payment or which are being contested
in good faith by appropriate proceedings; (d) Liens in favor of issuers of
surety bonds or letters of credit issued pursuant to the request of and for the
account of such Person in the ordinary course of its business; (e) minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person; (f) Liens securing
Hedging Obligations so long as the related Indebtedness is, and is permitted to
be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations; (g) leases and subleases of real property which do not
interfere with the ordinary conduct of the business of the Issuer or any of its
Restricted Subsidiaries, and which are made on customary and usual terms
applicable to similar properties; (h) Liens existing as of the date on which
the Notes are originally issued and Liens created by this Indenture; (i) Liens
created solely for the purpose of securing the payment of all or a part of the
purchase price of assets or property acquired or constructed in the ordinary
course of business after the date on which the Notes are originally issued;
provided, however, that (A) the aggregate principal amount of Indebtedness
secured by such Liens shall not exceed the aggregate purchase price of the
assets or property so acquired or constructed, (B) the Indebtedness secured by
such Liens shall have otherwise been permitted to be issued under this
Indenture and (C) such Liens shall not encumber any other assets or property of
the Issuer or any of its Restricted Subsidiaries and shall attach to such
assets or property within 90 days of the construction or acquisition of such
assets or property; (j) Liens on the assets or property of a Restricted
Subsidiary of the Issuer existing at the time such Restricted Subsidiary became
a Subsidiary of the Issuer and not incurred as a result of (or in connection
with or in anticipation of) such Restricted Subsidiary becoming a Subsidiary of
the Issuer; provided, however, that (A) any such Lien does not by its terms
cover any property or assets after the time such Restricted Subsidiary becomes
a Subsidiary which were not covered immediately prior to such transaction, (B)
the incurrence of the Indebtedness secured by such Lien shall have otherwise
been permitted to be issued under this Indenture, and (C) such Liens do not
extend to or cover any other property or assets of the Issuer or any of its
Restricted Subsidiaries; (k) Liens securing Indebtedness outstanding under the
New Credit Facility; (l) Liens extending, renewing or replacing in whole or in
part a Lien permitted by this Indenture; provided, however, that (A) such Liens
do not extend beyond the property subject to the existing Lien and improvements
and construction on such property and (B) the Indebtedness secured by the Lien
may not exceed the Indebtedness secured at the time by the existing Lien; (m)
Liens Incurred in the ordinary course of business by the Issuer or any
Restricted Subsidiary of the Issuer with respect to obligations that do not
exceed $5.0 million at any one time outstanding and that (i) are not Incurred
in connection with the borrowing of money or the obtaining of advances of
credit (other than trade credit in the ordinary course of business) and (ii) do
not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Issuer or
such Restricted Subsidiary; (n) Liens in favor of the Issuer or a Wholly Owned
Subsidiary; (o) any interest in or title of a lessor to any property subject to
a Capitalized Lease Obligation permitted to be Incurred under this Indenture
and (p) Liens on the Capital Stock of Unrestricted Subsidiaries.
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"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become
due at the relevant time.
"Qualified Proceeds" means assets that are used or useful in,
or Capital Stock of any Person engaged in, a Permitted Business.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, purchase, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such
indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Issuer or any Restricted Subsidiary existing on the
date of this Indenture or Incurred in compliance with this Indenture (including
Indebtedness of the Issuer that Refinances Indebtedness of any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary that Refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) the
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) the Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness is Incurred in an
aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of the aggregate
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding or committed (plus fees and expenses,
including any premium and defeasance costs) under the Indebtedness being
Refinanced; provided further, however, that Refinancing Indebtedness shall not
include (x) Indebtedness of a Subsidiary that Refinances Indebtedness of the
Issuer or (y) Indebtedness of the Issuer or a Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock or similar payment to the direct or indirect
holders of its Capital Stock (other than dividends or distributions payable
solely in its Capital Stock (other than Disqualified Stock) and dividends or
distributions payable solely to the Issuer or a Restricted Subsidiary, and
other than pro rata dividends or other distributions made by a Subsidiary that
is not a Wholly
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Owned Subsidiary to minority stockholders (or owners of an equivalent interest
in the case of a Subsidiary that is an entity other than a corporation)), (ii)
the purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Issuer held by any Person or of any Capital Stock of a
Restricted Subsidiary held by any Person (other than the Issuer or a Restricted
Subsidiary), including the exercise of any option to exchange any Capital Stock
(other than into Capital Stock of the Issuer that is not Disqualified Stock),
other than as permitted by clause (ix) of the definition of "Permitted
Investments"; (iii) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Subordinated Obligations
(other than the purchase, repurchase or other acquisition of Subordinated
Obligations purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of
the date of acquisition); or (iv) the making of any Investment in any Person
(other than a Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the Issuer
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Issuer or a Restricted
Subsidiary transfers such property to a Person and the Issuer or a Restricted
Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Semi-Annual Accrual Date" has the meaning set forth in the
definition of the term "Accreted Value."
"Senior Indebtedness" means (i) Indebtedness of the Issuer,
whether outstanding on the Issue Date or thereafter Incurred, and (ii) accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Issuer to the
extent post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Issuer for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
the Issuer is responsible or liable unless, in the case of (i) and (ii), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of the Issuer to any Subsidiary, (2) any liability
for Federal, state, local or other taxes owed or owing by the Issuer, (3) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabilities), (4) any Indebtedness of the Issuer (and any accrued and unpaid
interest respect thereof) which
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is subordinate or junior in any respect to any other Indebtedness or other
obligation of the Issuer, (5) that portion of any Indebtedness which at the
time of Incurrence is Incurred in violation of this Indenture.
"Series B Investors" means Whitney Equity Partners, L.P.,
Whitney Strategic Partners III, L.P., X.X. Xxxxxxx III, L.P., Xxxxxx-Xxxxxx
Media Partners, L.P., Kitty Hawk Capital Limited Partnership, III, Kitty Hawk
Capital Limited Partnership, IV, Eagle Creek Capital, L.L.C., The North
Carolina Enterprise Fund, L.P., Xxxxxx Family Limited Partnership, Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxx.
"Series B Preferred Stock" means the Series B Preferred Stock
of the Issuer.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Issuer within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Site Management Contract" means any agreement pursuant to
which the Issuer or any of its Restricted Subsidiaries has the right to
substantially control Tower Assets and the revenues derived from the rental or
use thereof.
"Specified Date" has the meaning set forth in the definition of
the term "Accreted Value."
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Issuer
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, (ii) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within one year
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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, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $500.0 million (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (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 (i) above
entered into with a bank meeting the qualifications described in clause (ii)
above, (iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Issuer) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or higher)
according to Standard & Poor's Ratings Group, and (v) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully 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 Standard & Poor's Ratings Group or "A" by Xxxxx'x
Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Tower Asset Exchange" means any transaction in which the
Issuer or a Restricted Subsidiary exchanges assets for Tower Assets or Tower
Assets and cash or cash equivalents where the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officer's Certificate
delivered to the Trustee) of the Tower Assets and cash or cash equivalents
received by the Issuer and its Restricted Subsidiaries in such exchange is at
least equal to the fair market value of the assets disposed in such exchange.
"Tower Assets" means wireless communication transmission
towers and related assets that are located on the site of a transmission tower.
"Tower EBITDA" means, for any period, the EBITDA of the Issuer
and its Restricted Subsidiaries for such period that is directly attributable
to site rental revenue, license or management fees paid to manage, lease or
sublease space on communication sites owned, leased or managed by the Issuer
(collectively, "site leasing revenues"), all determined on a consolidated basis
and in accordance with GAAP. Tower EBITDA will not include revenue derived
from the sale of assets. In allocating, corporate, general, administrative and
other operating expenses that are not allocated to any particular line of
business in the financial statements of the Issuer, such expenses shall be
allocated to the Issuer's site leasing business in proportion to the percentage
of the Issuer's total revenues for the applicable period that were site leasing
revenues.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means such successor.
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"Trust Officer" means any trust officer, assistant vice
president, or vice president of the Trustee assigned by the Trustee to
administer this Indenture.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Issuer 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 Subsidiary of the Issuer (including any newly acquired or newly formed
Subsidiary of the Issuer) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of, or owns or holds any Lien on any property of, the Issuer or any other
Restricted Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary
to be so designated; provided, however, that either (A) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (B) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.5. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (x) the Issuer would have
been permitted to incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) of Section 4.3 and (y) no Default shall have occurred and be
continuing. Any such designation by the Board of Directors 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 Officer's Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustee
thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Issuer all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Issuer or another Wholly Owned Subsidiary.
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SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8
"Appendix" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
"Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"covenant defeasance option" . . . . . . . . . . . . . . . . . . . . . . . . 8.1(b)
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
"legal defeasance option" . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(b)
"Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7(b)
"Offer Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7(b)
"Offer Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7(b)
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Purchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7(b)
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Successor Issuer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. The mandatory provisions of the TIA are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) except as otherwise expressly provided, the principal
amount of any noninterest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in accordance
with GAAP;
(8) the principal amount of any Preferred Stock shall be
(i) the maximum liquidation preference of such Preferred Stock or (ii)
the maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater; and
(9) except as otherwise expressly provided, all
references to the date the Notes were originally issued shall refer to
the date the Initial Notes were originally issued.
SECTION 1.5. One Class of Notes. The Initial Notes, the
Private Exchange Notes and the Exchange Notes shall vote and consent together
on all matters as one class and none of the Initial Notes, the Private Exchange
Notes or the Exchange Notes shall have the right to vote or consent as a
separate class on any matter.
ARTICLE II
The Notes
SECTION 2.1. Form and Dating. Certain provisions relating to
the Initial Notes, the Private Exchange Notes and the Exchange Notes are set
forth in the Rule 144A/Regulation S Appendix attached hereto (the "Appendix"),
which is hereby incorporated in and expressly made a part of this Indenture.
The Initial Notes and the Trustee's certificate of authentication thereof shall
be substantially in the form of Exhibit 1 to the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Notes, the Private Exchange Notes and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A, which
is hereby incorporated by reference and expressly made a part of this
Indenture. The Notes may have notations, legends or
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endorsements required by law, rule of any securities exchange or
over-the-counter market on which such Notes are then listed or quoted, or
usage, in addition to those set forth on the Appendix and Exhibit A. The
Issuer and the Trustee shall approve the forms of the Notes and any notation,
endorsement or legend on them. Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in the Appendix and Exhibit A
are part of the terms of this Indenture and, to the extent applicable, the
Issuer and the Trustee, by their execution and delivery of this Indenture,
expressly agree to be bound by such terms.
SECTION 2.2. Execution and Authentication. Two Officers
shall sign the Notes for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a
Note shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Issuer to authenticate the Notes. Unless limited
by the terms of such appointment, any such 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.
SECTION 2.3. Registrar and Paying Agent. The Issuer shall
(i) appoint an agent (the "Registrar") who shall maintain an office or agency
where Notes may be presented for registration of transfer or for exchange and
(ii) an agent (the "Paying Agent") who shall maintain an office or agency where
Notes may be presented for payment. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Issuer may have one or more
co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any such additional paying agent.
In the event the Issuer shall retain any Person not a party to
this Indenture as an agent hereunder, the Issuer shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall incorporate the terms of the TIA.
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Issuer shall notify the Trustee of the name and address of
each such agent. If the Issuer fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
The Issuer initially appoints the Trustee as Registrar and
Paying Agent for the Notes.
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SECTION 2.4. Paying Agent to Hold Money in Trust. By at
least 11:00 a.m. (New York City time) on the date on which any principal or
interest on any Note is due and payable, the Issuer shall deposit with the
Paying Agent a sum sufficient to pay such principal or interest when due. The
Issuer 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
Noteholders or the Trustee all money held by such Paying Agent for the payment
of principal or interest on the Notes and shall notify the Trustee of any
default by the Issuer in making any such payment. If the Issuer or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Issuer at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to
the Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Issuer or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with
respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Noteholder 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 Noteholders. If the Trustee or any Paying
Agent is not the Registrar, the Issuer shall cause the Registrar to furnish to
the Trustee or any such Paying Agent, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee or any
such Paying Agent may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Noteholders.
SECTION 2.6. [Intentionally Omitted]
SECTION 2.7. Replacement Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note shall provide the
Issuer and the Trustee with evidence to their satisfaction that the Note has
been lost, destroyed or wrongfully taken, the Issuer shall issue and the
Trustee shall authenticate a replacement Note if the requirements of Section
8-405 of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may
suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder
for their expenses in replacing a Note, including reasonable fees and expenses
of counsel. Every replacement Note is an additional obligation of the Issuer.
SECTION 2.8. Outstanding Notes. Notes outstanding at any
time are all Notes authenticated by the Trustee except for those canceled,
those delivered for cancellation and those described in this Section 2.8 as not
outstanding. A Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Issuer receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
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If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Notes (or portions thereof) to be redeemed or maturing, as the case may
be, and the Paying Agent is not prohibited from paying such money to the
Noteholders on that date pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.9. Temporary Notes. Until definitive Notes are
ready for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes. Without unreasonable delay, the Issuer shall prepare and
the Trustee shall authenticate definitive Notes. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at any office or agency maintained
by the Issuer for that purpose and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, one or more definitive Notes representing an equal principal
amount of Notes. Until so exchanged, the Holder of temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as a Holder
of definitive Notes.
SECTION 2.10. Cancellation. The Issuer at any time may
deliver Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee for cancellation any Notes surrendered to
them for registration of transfer or exchange or payment. The Trustee shall
cancel and destroy (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for registration of transfer or exchange,
payment or cancellation and deliver a certificate of such destruction to the
Issuer unless the Issuer directs the Trustee to deliver canceled Notes to the
Issuer. The Issuer may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Issuer defaults in
a payment of interest on the Notes, the Issuer shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) at the rate
specified therefor in the Notes in any lawful manner. The Issuer may pay the
defaulted interest to the Persons who are Noteholders on a subsequent special
record date. The Issuer shall fix or cause to be fixed (or upon the Issuer's
failure to do so the Trustee shall fix) any such special record date and
payment date to the reasonable satisfaction of the Trustee which specified
record date shall not be less than 10 days prior to the payment date for such
defaulted interest and shall promptly mail or cause to be mailed to each
Noteholder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid. The Issuer shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment, and at the same time the Issuer
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed
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payment, such money when so deposited to be held in trust for the benefit of
the Person entitled to such defaulted interest as provided in this Section
2.11.
SECTION 2.12. CUSIP Numbers. The Issuer in issuing the Notes
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE III
Redemption
SECTION 3.1. Notices to Trustee. If the Issuer elects to
redeem Notes pursuant to paragraph 5 of the Notes (Exhibit 1 to the Appendix),
it shall notify the Trustee and the Paying Agent in writing of the redemption
date and the principal amount at maturity of Notes to be redeemed and the
redemption price.
The Issuer shall give each notice to the Trustee and the
Paying Agent provided for in this Section at least 60 days before the
redemption date unless the Trustee and the Paying Agent consent to a shorter
period. Such notice shall be accompanied by an Officer's Certificate from the
Issuer to the effect that such redemption will comply with the conditions
herein. The record date relating to such redemption shall be selected by the
Issuer and set forth in the related notice given to the Trustee and the Paying
Agent, which record date shall be not less than 15 days prior to the date
selected for redemption by the Issuer.
SECTION 3.2. Selection of Notes to Be Redeemed. In the case
of any partial redemption, selection of the Notes for redemption will be made
by the Trustee 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 so listed, 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, although
no Note of $1,000 in original principal amount or less will be redeemed in
part. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption. Upon request of the
Issuer, the Trustee shall notify the Issuer of the Notes or portions of Notes
to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Notes, the Trustee at the
expense of the Issuer shall mail a notice of redemption by first-class mail to
each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
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(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and
unpaid interest, if any;
(5) if fewer than all the outstanding Notes are to be
redeemed, the identification and principal amounts of the particular
Notes to be redeemed;
(6) that, unless the Issuer defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Notes (or
portion thereof) called for redemption ceases to accrue on and after
the redemption date;
(7) the CUSIP number, if any, printed on the Notes being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
The Trustee shall give the notice of redemption in the
Issuer's name and at the Issuer's expense. In such event, the Issuer shall
provide the Trustee with the information required by this Section 3.3.
SECTION 3.4. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption shall become due and payable
on the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued and unpaid interest, if any, to the
redemption date; provided that the Issuer shall have deposited the redemption
price with the Paying Agent or the Trustee on or before 11:00 a.m. (New York
City time) on the date of redemption; provided, further, that if the redemption
date is after a regular record date and on or prior to the interest payment
date, the accrued and unpaid interest shall be payable to the Noteholder of the
redeemed Notes registered on the relevant record date. Failure to give notice
or any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. By at least 11:00
a.m. (New York City time) on the date on which any principal of or interest on
any Note is due and payable, the Issuer shall deposit with the Paying Agent
(or, if the Issuer or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued and
unpaid interest, if any, on all Notes to be redeemed on that date other than
Notes or portions of Notes called for redemption which are owned by the Issuer
or a Subsidiary and have been delivered by the Issuer or such Subsidiary to the
Trustee for cancellation.
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If the Issuer complies with the preceding paragraph, then,
unless the Issuer defaults in the payment of such redemption price, the Notes
shall cease to accrete and interest on the Notes to be redeemed will cease to
accrue on and after the applicable redemption date, whether or not such Notes
are presented for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a
Note that is redeemed in part, the Issuer shall execute and the Trustee shall
authenticate for the Holder (at the Issuer's expense) a new Note equal in a
principal amount at maturity to the unredeemed portion of the Note surrendered.
ARTICLE IV
Covenants
SECTION 4.1. Payment of Notes. The Issuer shall promptly pay
the principal of and interest on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal and interest shall be
considered paid on the date due if on or before 11:00 a.m. (New York City time)
on such date the Trustee or the Paying Agent holds (or, if the Issuer or a
Subsidiary is the Paying Agent, the segregated account or separate trust fund
maintained by the Issuer or such Subsidiary pursuant to Section 2.4) in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent (or, if the Issuer or a
Subsidiary is the Paying Agent, the Issuer or such Subsidiary), as the case may
be, is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.11.
Notwithstanding anything to the contrary contained in this
Indenture, the Issuer or the Paying Agent may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes imposed by the
United States of America or other domestic or foreign taxing authorities from
principal or interest payments hereunder.
SECTION 4.2. SEC Reports. Notwithstanding that the Issuer
may not be required to remain subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Issuer will file with the SEC (unless the
SEC does not permit such filing) and provide the Trustee and Noteholders with
the annual reports and such information, documents and other reports which are
specified in Sections 13 and 15(d) of the Exchange Act. The Issuer also will
comply with the other provisions of TIA Section 314(a).
SECTION 4.3. Limitation on Indebtedness. (a) The Issuer will
not Incur, directly or indirectly, any Indebtedness unless, on the date of such
Incurrence and after giving effect to such Incurrence and the application of
the net proceeds therefrom, the Indebtedness to Adjusted EBITDA Ratio of the
Issuer would be less than 7.00:1. Accrual of interest,
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accretion or amortization of original issue discount and the payment of
interest in the form of additional Indebtedness will not be deemed to be an
incurrence of Indebtedness for purposes of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and
regardless of the amount of outstanding Indebtedness of the Issuer, the Issuer
may Incur any or all of the following Indebtedness: (i) Indebtedness of the
Issuer owing to and held by any Restricted Subsidiary; provided, however, that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
another Restricted Subsidiary) will be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the Issuer; (ii) Indebtedness represented by
the Notes and the Exchange Notes; (iii) Indebtedness of the Issuer (other than
the Indebtedness described in clauses (i) or (ii) above) outstanding on the
Issue Date; (iv) Indebtedness (including Capitalized Lease Obligations) of the
Issuer Incurred to finance the acquisition, construction or improvement of
fixed or capital assets in an aggregate principal amount at any one time
outstanding not to exceed $5.0 million (together with the amount of any
Indebtedness then outstanding and Incurred pursuant to clause (b)(vi) of
Section 4.4); provided, that such Indebtedness is Incurred within 180 days
after the date of such acquisition, construction or improvement and does not
exceed the fair market value of such acquired, constructed or improved assets,
as determined in good faith by the Board of Directors of the Issuer; (v)
Refinancing Indebtedness Incurred in respect of any Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (ii), (iii) or this clause (v);
(vi) Indebtedness (A) in respect of performance bonds, bankers' acceptances,
letters of credit and surety or appeal bonds provided by the Issuer in the
ordinary course of its business and which do not secure other Indebtedness and
(B) under Currency Agreements and Interest Rate Agreements Incurred which, at
the time of Incurrence, is in the ordinary course of business; provided,
however, that, in the case of Currency Agreements and Interest Rate Agreements,
such Currency Agreements and Interest Rate Agreements are directly related to
Indebtedness permitted to be Incurred by the Issuer pursuant to this Indenture;
(vii) Indebtedness represented by Guarantees by the Issuer of Indebtedness
otherwise permitted to be Incurred pursuant to this Indenture; (viii)
Indebtedness of any other Person existing at the time such other Person is
merged with or into the Issuer outstanding on or prior to the date on which
such Person was merged with or into the Issuer (other than Indebtedness
Incurred in connection with, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of related
transactions pursuant to which such Person was merged with or into the Issuer);
provided, however, that on the date of such merger and after giving effect
thereto, the Issuer would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to paragraph (a) of this Section 4.3; (ix)
Indebtedness Incurred by the Issuer's Subsidiaries not otherwise prohibited by
the terms of this Indenture; (x) the Incurrence by the Issuer of Indebtedness
not to exceed, at any one time outstanding (together with the amount of any
Indebtedness then outstanding and Incurred pursuant to clause (b)(ix) of
Section 4.4), 1.5 times the aggregate Net Cash Proceeds received by the Issuer
from the issue or sale of Capital Stock (other than Disqualified Stock)
subsequent to the Issue Date (other than an issuance or sale to a Subsidiary of
the Issuer and other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Issuer or any of its Restricted
Subsidiaries), less the amount of such Net Cash Proceeds used to make
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Restricted Payments pursuant clause 3(B) of paragraph (a) of Section 4.5 or
applied pursuant to clause (i)(B) of paragraph (b) of Section 4.5; provided,
however, that, immediately prior to the consummation of each such issuance or
sale of Capital Stock, the Issuer would have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to paragraph (a) of this Section 4.3;
and (xi) other Indebtedness in an aggregate principal amount outstanding at any
time not to exceed $5.0 million (together with the amount of any Indebtedness
and Preferred Stock then outstanding and Incurred pursuant to clause (b)(x) of
Section 4.4).
(c) Notwithstanding the foregoing, the Issuer shall not Incur
any Indebtedness pursuant to the foregoing paragraph (b) of this Section 4.3 if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations unless such new Indebtedness shall (i) be subordinated
to the Notes to at least the same extent as such Subordinated Obligations being
Refinanced and (ii) have a Stated Maturity that is no earlier than the Stated
Maturity of the Subordinated Obligations being Refinanced.
(d) For purposes of determining compliance with this Section
4.3, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Issuer, in its sole
discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses of
this Section 4.3 and (ii) an item of Indebtedness may be divided and classified
in more than one of the types of Indebtedness described in this Section 4.3.
SECTION 4.4. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries. (a) The Issuer shall not permit any Restricted
Subsidiary to Incur, directly or indirectly, any Indebtedness or Preferred
Stock unless, on the date of such Incurrence and after giving effect to such
Incurrence and the application of the net proceeds therefrom, the Indebtedness
to Adjusted EBITDA Ratio of the Issuer would be less than 7.00:1. Accrual of
interest, accretion or amortization of original issue discount and the payment
of interest in the form of additional Indebtedness will not be deemed to be an
incurrence of Indebtedness for purposes of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and regardless
of the amount of outstanding Indebtedness of the Restricted Subsidiaries, any
Restricted Subsidiary may Incur any or all of the following Indebtedness: (i)
Indebtedness Incurred under the New Credit Facility in an aggregate principal
amount outstanding at any time not to exceed the greater of (A) $50.0 million
and (B) the product of (x) $200,000 and (y) the number of Completed Towers on
the date of such Incurrence, less the aggregate amount of all proceeds from all
Asset Dispositions of Tower Assets of the Issuer that have been applied since
the Issue Date to permanently reduce the outstanding amount of such
Indebtedness pursuant to Section 4.7; (ii) Indebtedness or Preferred Stock of a
Restricted Subsidiary issued to and held by the Issuer or a Restricted
Subsidiary; provided, however, that any subsequent issuance or transfer of any
Capital Stock which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness or
Preferred Stock (other than to the Company or a Restricted Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness or
Preferred Stock by the issuer thereof; (iii) Indebtedness or Preferred Stock of
a Restricted Subsidiary Incurred and outstanding on or
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prior to the date on which such Restricted Subsidiary was acquired by the
Issuer (other than Indebtedness or Preferred Stock Incurred in connection with,
or to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Issuer); provided, however, that on the date of such acquisition and after
giving effect thereto, the Issuer would have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to paragraph (a) of Section 4.3; (iv)
Indebtedness or Preferred Stock outstanding on the Issue Date (other than
Indebtedness described in clauses (i), (ii) or (iii) of this paragraph); (v)
Refinancing Indebtedness Incurred in respect of Indebtedness or Preferred Stock
referred to in clauses (iii) or (iv) of this paragraph or this clause (v);
provided, however, that to the extent such Refinancing Indebtedness directly or
indirectly Refinances Indebtedness or Preferred Stock of a Subsidiary described
in clause (iii), such Refinancing Indebtedness shall be Incurred only by such
Subsidiary; (vi) Indebtedness (including Capitalized Lease Obligations)
Incurred to finance the acquisition, construction or improvement of fixed or
capital assets in an aggregate principal amount at any one time outstanding not
to exceed $5.0 million (together with the amount of any Indebtedness then
outstanding and Incurred pursuant to clause (b)(iv) of Section 4.3); provided,
that such Indebtedness is Incurred within 180 days after the date of such
acquisition, construction or improvement and does not exceed the fair market
value of such acquired, constructed or improved assets, as determined in good
faith by the Board of Directors of the Issuer; (vii) Indebtedness (A) in
respect of performance bonds, bankers' acceptances, letters of credit and
surety or appeal bonds provided in the ordinary course of its business and
which do not secure other Indebtedness and (B) under Currency Agreements and
Interest Rate Agreements Incurred which, at the time of Incurrence, is in the
ordinary course of business; provided, however, that, in the case of Currency
Agreements and Interest Rate Agreements, such Currency Agreements and Interest
Rate Agreements are directly related to Indebtedness permitted to be Incurred
pursuant to this Indenture; (viii) Indebtedness represented by Guarantees of
Indebtedness otherwise permitted to be Incurred pursuant to this Indenture;
(ix) the Incurrence of Indebtedness not to exceed, at any one time outstanding
(together with the amount of any Indebtedness then outstanding and Incurred
pursuant to clause (b)(x) of Section 4.3), 1.5 times the aggregate Net Cash
Proceeds received by the Issuer from the issue or sale of Capital Stock (other
than Disqualified Stock) subsequent to the Issue Date (other than an issuance
or sale to a Subsidiary of the Issuer and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the Issuer or any of
its Restricted Subsidiaries), less the amount of such Net Cash Proceeds used to
make Restricted Payments pursuant clause 3(B) of paragraph (a) of Section 4.5
or applied pursuant to clause (i)(B) of paragraph (b) of Section 4.5; provided,
however, that, immediately prior to the consummation of each such issuance or
sale of Capital Stock, the Issuer would have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to paragraph (a) of Section 4.3; and
(x) other Indebtedness and Preferred Stock in an aggregate principal and/or
liquidation amount outstanding at any time not to exceed $5.0 million (less the
amount of any Indebtedness then outstanding and Incurred pursuant to clause
(b)(xi) of Section 4.3).
(c) For purposes of determining compliance with this Section
4.4, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Issuer, in its sole
discretion, will classify such item of
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Indebtedness and only be required to include the amount and type of such
Indebtedness in one of the above clauses of this Section 4.4 and (ii) an item
of Indebtedness may be divided and classified in more than one of the types of
Indebtedness described in this Section 4.4.
The Issuer will not permit any Unrestricted Subsidiary to
Incur any Indebtedness other than Non-Recourse Debt.
SECTION 4.5. Limitation on Restricted Payments. (a) The
Issuer will not, and will not permit any Restricted Subsidiary, directly or
indirectly, to make any Restricted Payment if at the time the Issuer or such
Restricted Subsidiary makes such Restricted Payment: (1) a Default or Event of
Default will have occurred and be continuing (or would result therefrom); (2)
the Issuer could not Incur at least $1.00 of additional Indebtedness under
paragraph (a) of Section 4.3; or (3) the aggregate amount of such Restricted
Payment and all other Restricted Payments (the amount so expended, if other
than in cash, to be determined in good faith by the Board of Directors of the
Issuer, whose determination will be evidenced by a resolution of such Board of
Directors) declared or made subsequent to the Issue Date would exceed the sum
of: (A) (x) the aggregate EBITDA (or, in the event such EBITDA shall be a
deficit, minus such deficit) accrued subsequent to the Issue Date to the most
recent date for which financial information is available to the Issuer, taken
as one accounting period, (y) less 1.4 times Consolidated Interest Expense for
the same period; (B) (x) 100% of the aggregate Net Cash Proceeds (less the
aggregate amount of such Net Cash Proceeds used to Incur Indebtedness pursuant
to clause (b)(x) of Section 4.3 and clause (b)(ix) of Section 4.4) and (y) 70%
of the GAAP purchase accounting valuation of Qualified Proceeds (with each such
valuation calculated as of the sale date of the Capital Stock received as
consideration therefor), in each case received by the Issuer from the issue or
sale of Capital Stock (other than Disqualified Stock) subsequent to the Issue
Date (other than an issuance or sale to a Subsidiary of the Issuer and other
than an issuance or sale to an employee stock ownership plan or to a trust
established by the Issuer or any of its Restricted Subsidiaries); (C) the
amount by which Indebtedness of the Issuer is reduced on the Issuer's balance
sheet upon the conversion or exchange (other than by a Restricted Subsidiary)
subsequent to the Issue Date of any Indebtedness of the Issuer convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of the Issuer
(less the amount of any cash, or the fair value of any other property,
distributed by the Issuer upon such conversion or exchange); (D) an amount
equal to the sum of (i) the net reduction in Investments in Unrestricted
Subsidiaries resulting from dividends, repayments of loans or advances or other
transfers of assets to the Issuer or any Restricted Subsidiary from
Unrestricted Subsidiaries and (ii) the portion (proportionate to the Issuer's
equity interest in such Subsidiary) of the fair market value of the net assets
of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; provided, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the amount of Investments
previously made by the Issuer or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the amount of
Restricted Payments; (E) dividends and distributions received by the Issuer
subsequent to the Issue Date from Unrestricted Subsidiaries, to the extent such
dividends and distributions are not otherwise included in calculating EBITDA;
and (F) Net Cash Proceeds received by the Issuer subsequent to the
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Issue Date from Investments that are not Permitted Investments, to the extent
not otherwise included in calculating EBITDA.
(b) The provisions of the foregoing paragraph (a) of this
Section 4.5 will not prohibit: (i) any purchase, redemption, defeasance or
other acquisition of Capital Stock of the Issuer or Subordinated Obligations
made by exchange for, or out of the net proceeds of the substantially
concurrent sale of, Capital Stock of the Issuer (other than Disqualified Stock
and other than Capital Stock issued or sold to a Subsidiary of the Issuer or an
employee stock ownership plan or to a trust established by the Issuer or any of
its Subsidiaries); provided, however, that (A) such purchase, redemption,
defeasance or other acquisition will be excluded in the calculation of the
amount of Restricted Payments and (B) to the extent applied toward any such
purchase, redemption, defeasance or other acquisition, the Net Cash Proceeds
from such sale will be excluded from clause (3)(B) of paragraph (a) of this
Section 4.5, clause (b)(x) of Section 4.3 and clause (b)(ix) of Section 4.4;
(ii) any purchase, redemption, defeasance or other acquisition of Subordinated
Obligations made by exchange for, or out of the net proceeds of the
substantially concurrent sale of, Subordinated Obligations of the Issuer;
provided, however, that (A) the principal amount of such new Indebtedness does
not exceed the principal amount of the Subordinated Obligations being so
redeemed, repurchased, acquired or retired for value (plus the amount of any
premium required to be paid under the terms of the instrument governing the
Subordinated Obligations being so redeemed, repurchased, acquired or retired),
(B) such new Indebtedness is subordinated to the Notes at least to the same
extent as such Subordinated Obligations so purchased, exchanged, redeemed,
repurchased, acquired or retired for value, (C) such new Indebtedness has a
final scheduled maturity date later than the earlier of the final scheduled
maturity date of the Subordinated Obligations being so redeemed, repurchased,
acquired or retired and the final scheduled maturity date of the Notes and (D)
such new Indebtedness has an Average Life equal to or greater than the Average
Life of the Notes; provided further, however, that such purchase, redemption,
defeasance or other acquisition will be excluded in the calculation of the
amount of Restricted Payments; (iii) dividends paid within 60 days after the
date of declaration thereof if at such date of declaration such dividend would
have complied with this covenant; provided, however, that the amount of such
dividend will be included in the calculation of the amount of Restricted
Payments; and (iv) purchases of outstanding shares of the Issuer's capital
stock from deceased shareholders in an amount not to exceed $1.0 million in the
aggregate; provided, however, that such purchases will be included in the
calculation of the amount of Restricted Payments; provided, however, that, at
the time of, and after giving effect to, any Restricted Payment permitted by
clauses (i), (ii) and (iv), no Default or Event of Default shall have occurred
and be continuing.
SECTION 4.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Issuer will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or
become effective any consensual encumbrance or restriction on the ability of
any Restricted Subsidiary to (i) pay dividends or make any other distributions
on its Capital Stock to the Issuer or a Restricted Subsidiary or pay any
Indebtedness or other obligation owed to the Issuer, (ii) make any loans or
advances to the Issuer or (iii) transfer any of its property or assets to the
Issuer or any Restricted Subsidiary, except: (1) any encumbrance or restriction
pursuant to the New Credit Facility or any
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agreement in effect at or entered into on the Issue Date; (2) any encumbrance
or restriction with respect to a Restricted Subsidiary pursuant to an agreement
relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior
to the date on which such Restricted Subsidiary was acquired by the Issuer or a
Restricted Subsidiary (other than Indebtedness Incurred as consideration in, or
to provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Subsidiary or was acquired by the Issuer or
a Restricted Subsidiary) and outstanding on such date; (3) any encumbrance or
restriction pursuant to an agreement effecting a Refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (1) or (2) of this
Section 4.6 or contained in any amendment to an agreement referred to in clause
(1) or (2) of this Section 4.6; provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment taken as a whole are no less favorable to
the Noteholders than the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such predecessor agreements as determined in
good faith by the Board of Directors of the Issuer; (4) in the case of clause
(iii), any encumbrance or restriction that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is subject to
a lease, license or other contract; (5) in the case of clause (iii), contained
in security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such encumbrance or restrictions restrict the transfer
of the property subject to such security agreements or mortgages; (6) any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary pending the closing
of such sale or disposition; and (7) customary provisions with respect to the
disposition or distribution of assets or property in joint venture and other
similar agreements.
SECTION 4.7. Limitation on Sale of Assets and Subsidiary
Stock. (a) The Issuer will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless (i) the
Issuer or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to the
value of all non cash consideration), as determined in good faith by the Board
of Directors of the Issuer of the shares and assets subject to such Asset
Disposition and (ii) except in the case of a Tower Asset Exchange, at least 75%
of the consideration thereof received by the Issuer or such Restricted
Subsidiary is in the form of cash or cash equivalents.
Within 365 days after the receipt of any Net Available Cash
from an Asset Disposition, the Issuer or the applicable Restricted Subsidiary
may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase
Indebtedness (other than Disqualified Stock) of a Wholly Owned Subsidiary
(provided, that the applicable Restricted Subsidiary, whether or not a Wholly
Owned Subsidiary, also may prepay, repay, redeem or purchase its own
outstanding Indebtedness) or Senior Indebtedness (in each case other than
Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) acquire all
or substantially all of the assets of an entity engaged in a Permitted
Business; (C) acquire Voting Stock of an entity engaged in a Permitted Business
from a Person that is not a Subsidiary of the Issuer; provided, that, (x) after
giving effect thereto, the Issuer or its Restricted Subsidiary owns a majority
of such
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Voting Stock and (y) such acquisition is otherwise made in accordance with this
Indenture, including, without limitation, Section 4.5; or (D) make a capital
expenditure or acquire other long-term assets that are used or useful in a
Permitted Business. To the extent of the balance of such Net Available Cash
after application in accordance with clauses (A), (B), (C) or (D), the Issuer
shall make an Offer (as defined in Section 4.7(b)) to Holders of the Notes to
purchase Notes pursuant to and subject to the conditions set forth in paragraph
(b) of this Section 4.7.
Notwithstanding the foregoing provisions, the Issuer and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash
in accordance herewith except to the extent that the aggregate Net Available
Cash from all Asset Dispositions which are not applied in accordance with this
covenant exceeds $2.5 million. Pending application of Net Available Cash
pursuant to this covenant, such Net Available Cash shall be invested in
Permitted Investments.
For the purposes of this Section 4.7(a), the following are
deemed to be cash: (x) the assumption by the transferee of Indebtedness of the
Issuer (other than Disqualified Stock of the Issuer and other than Indebtedness
that is subordinated to the Notes) or Indebtedness of any Restricted Subsidiary
and the release of the Issuer or such Restricted Subsidiary from all liability
on such Indebtedness in connection with such Asset Disposition; (y) securities
received by the Issuer or any Restricted Subsidiary from the transferee that
are converted by the Issuer or such Restricted Subsidiary into cash within 20
days of the applicable Asset Disposition (to the extent of the cash received);
and (z) any liabilities (as shown on the Issuer's or such Restricted
Subsidiary's most recent balance sheet) of the Issuer or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any guarantee thereof) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Issuer or any such Restricted Subsidiary from further
liability.
(b) In the event of an Asset Disposition that requires
the purchase of Notes pursuant to paragraph (a) of this Section 4.7, the Issuer
will be required to purchase Notes tendered pursuant to an offer by the Issuer
for the Notes (the "Offer") at a purchase price of 100% of their Accreted Value
as of the date of purchase (without premium) plus accrued and unpaid interest
to the date of purchase in accordance with the procedures (including prorating
in the event of oversubscription) set forth in this Indenture. If the
aggregate purchase price of Notes tendered pursuant to the Offer is less than
the Net Available Cash allotted to the purchase of the Notes, the Issuer may
use any remaining Net Available Cash for general corporate purposes not
otherwise prohibited by this Indenture. If the aggregate purchase price of
Notes tendered pursuant to the Offer is greater than the Net Available Cash
allotted to the purchase of the Notes, the Trustee will select the Notes to be
purchased on the basis set forth in paragraph (c) of this Section 4.7. Upon
completion of any required Offer to the holders of the Notes, the amount of Net
Available Cash will be reset at zero. The Issuer shall not be required to make
an Offer for Notes pursuant to this Section 4.7 if the Net Available Cash
available therefor (after application of the proceeds as provided in the second
paragraph of Section 4.7(a)) are less than $5.0 million for all Asset
Dispositions (which lesser amounts
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shall be carried forward for purposes of determining whether an Offer is
required with respect to the Net Available Cash from any subsequent Asset
Disposition).
(c)(1) Promptly, and in any event within 30 days after the
Issuer becomes obligated to make an Offer, the Issuer shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, at the
address appearing in the security register, a written notice stating that the
Holder may elect to have his Notes purchased by the Issuer either in whole or
in part (subject to prorationing as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of $1,000 of principal amount at
maturity, at the applicable purchase price. The notice shall specify a
purchase date not less than 30 days nor more than 60 days after the date of
such notice (the "Purchase Date") and shall contain all instructions and
materials necessary to tender Notes pursuant to the Offer.
(2) Not later than the date upon which written notice of
an Offer is delivered to the Trustee as provided below, the Issuer
shall deliver to the Trustee an Officer's Certificate as to (i) the
amount of the Offer (the "Offer Amount"), (ii) the allocation of the
Net Available Cash from the Asset Dispositions pursuant to which such
Offer is being made and (iii) the compliance of such allocation with
the provisions of Section 4.7(a). Upon the expiration of the period
for which the Offer remains open (the "Offer Period"), the Issuer
shall deliver to the Trustee for cancellation the Notes or portions
thereof which have been properly tendered to and are to be accepted by
the Issuer. Not later than 11:00 a.m. (New York City time) on the
Purchase Date, the Issuer shall irrevocably deposit with the Trustee
or with a paying agent (or, if the Issuer is acting as Paying Agent,
segregate and hold in trust) an amount in cash sufficient to pay the
Offer Amount for all Notes properly tendered to, not withdrawn from
and accepted by the Issuer. The Trustee shall, on the Purchase Date,
mail or deliver payment to each tendering Holder in the amount of the
purchase price.
(3) Holders electing to have a Note purchased will be
required to surrender the Note, together with all necessary
endorsements and other appropriate materials duly completed, to the
Issuer at the address specified in the notice at least three Business
Days prior to the Purchase Date. Holders will be entitled to withdraw
their election in whole or in part if the Trustee or the Issuer
receives not later than one Business Day prior to the Purchase Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note (which shall be $1,000 in principal
amount at maturity or an integral multiple thereof) which was
delivered for purchase by the Holder, the aggregate principal amount
at maturity of such Note (if any) that remains subject to the original
notice of the Offer and that has been or will be delivered for
purchase by the Issuer and a statement that such Holder is withdrawing
his election to have such Note purchased. If at the expiration of the
Offer Period the aggregate principal amount at maturity of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee shall
select the Notes to be purchased in accordance with the provisions of
Section 3.2 (with such adjustments as may be deemed appropriate by the
Trustee so that only securities in denominations of $1,000 principal
amount at maturity, or integral multiples thereof, shall be
purchased).
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Holders whose Notes are purchased only in part will be issued new
Notes equal in principal amount at maturity to the unpurchased portion
of the Notes surrendered.
(4) A Note shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails
or delivers payment therefor to the surrendering Holder.
(d) The Issuer will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Notes
pursuant to this covenant. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this covenant, the Issuer will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this covenant by virtue thereof.
(e) The provisions of this Section 4.7 shall not apply to any
transaction that is permitted under the provisions of Section 5.1.
SECTION 4.8. Limitation on Transactions with Affiliates. (a)
The Issuer will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of transactions
(including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with any Affiliate
of the Issuer (an "Affiliate Transaction") unless (i) the terms of such
transaction, taken as a whole, are no less favorable to the Issuer or such
Restricted Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person who is not
such an Affiliate; (ii) in the event such Affiliate Transaction involves an
aggregate amount in excess of $1.0 million, the terms of such transaction are
set forth in writing and shall have been approved by a majority of the members
of the Board of Directors having no personal stake in such Affiliate
Transaction (and such majority determines that such Affiliate Transaction
satisfies the criteria in clause (i) above) and (iii) in the event such
Affiliate Transaction involves an aggregate amount in excess of $5.0 million,
the Issuer has received a written opinion from a nationally recognized
independent investment banking firm that such Affiliate Transaction is fair to
the Issuer and its Restricted Subsidiaries from a financial point of view.
(b) The provisions of paragraph (a) of this Section 4.8 shall
not prohibit (i) any Restricted Payment permitted to be made pursuant to
Section 4.5, (ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by
the Board of Directors, or any arrangements relating thereto, (iii) the grant
of a stock options or similar rights to employees and directors of the Issuer
pursuant to plans approved by the Board of Directors, (iv) loans or advances to
employees in the ordinary course of business in accordance with the past
practices of the Issuer or its Restricted Subsidiaries, but in any event not to
exceed $1.0 million in the aggregate outstanding at any one time, (v) the
payment of reasonable fees to directors of the Issuer and its Restricted
Subsidiaries who are not employees of the Issuer or its Restricted
Subsidiaries, (vi) any transaction between the Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries, (vii) the issuance or
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sale of any Capital Stock (other than Disqualified Stock) of the Issuer and
(viii) any transaction consummated pursuant to the terms of any agreement
described in the Offering Circular to which the Issuer is a party, in each case
as such agreement is in effect on the Issue Date and without giving any effect
to any subsequent amendments, modifications or alterations thereof.
SECTION 4.9. Change of Control. (a) Upon the occurrence of
a Change of Control, each Holder shall have the right to require that the
Issuer repurchase all or any part of such Holder's Notes at a purchase price in
cash equal to 101% of the Accreted Value thereof as of the date of repurchase,
plus accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of Holders of record on the relevant record date to receive interest
due on the related interest payment date), in accordance with the terms
contemplated in Section 4.9(b).
(b) (i) Within 30 days following any Change of Control, the
Issuer shall mail a notice to each Holder at its registered address with a copy
to the Trustee stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Issuer to purchase such Holder's
Notes in denominations of $1,000 principal amount at maturity or any
integral multiple thereof at a purchase price in cash equal to 101% of
the Accreted Value thereof as of the date of repurchase, plus accrued
and unpaid interest, if any, to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to
such Change of Control);
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer, consistent
with this Section 4.9, that a Holder must follow in order to have its
Notes purchased by the Issuer.
(c) Holders electing to have a Note purchased will be
required to surrender the Note, together with all necessary endorsements and
other appropriate materials duly completed, to the Issuer at the address
specified in the notice at least three Business Days prior to the purchase
date. Holders will be entitled to withdraw their election if the Trustee or
the Issuer receives not later than one Business Day prior to the purchase date,
a facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of the Note which was delivered for purchase by
the Holder as to which such notice of withdrawal is being submitted and a
statement that such Holder is withdrawing his election to have such Note
purchased.
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(d) On the purchase date, all Notes purchased by the Issuer
under this Section 4.9 shall be delivered to the Trustee for cancellation, and
the Issuer shall pay the purchase price, including premium, if any, plus
accrued and unpaid interest, if any, to the Holders entitled thereto.
(e) The Issuer will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Section 4.9. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.9, the Issuer will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.9 by virtue
thereof.
(f) The Issuer will not be required to make an offer pursuant
to this Section 4.9 upon a Change of Control if a third party, in the manner,
at the times and otherwise in compliance with the requirements set forth in
this Indenture applicable to a Change of Control made by the Issuer, makes an
offer to purchase and purchases all Notes validly tendered and not withdrawn
under such offer.
(g) Notwithstanding the occurrence of a Change of Control,
the Issuer shall not be obligated to repurchase the Notes or otherwise comply
with this Section 4.9 if the Issuer has irrevocably elected to redeem all the
Notes in accordance with Article III; provided that the Issuer does not default
in its redemption obligations pursuant to such election.
SECTION 4.10. Limitation on Sale or Issuance of Capital Stock
of Restricted Subsidiaries. The Issuer (i) will not, and will not permit any
Restricted Subsidiary of the Issuer to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Restricted Subsidiary to any
Person (other than to the Issuer or a Wholly Owned Subsidiary), unless (a) such
transfer, conveyance, sale, lease or other disposition is of (x) all of the
Capital Stock of such Restricted Subsidiary or (y) a majority of the issued and
outstanding Capital Stock of such Restricted Subsidiary; provided, however,
that the Issuer's minority equity interest in such Person after giving effect
to any such disposition shall be deemed to constitute an Investment by the
Issuer in such Person; and (b) the net cash proceeds from such transfer,
conveyance, sale, lease or other disposition are applied in accordance with
Section 4.7 and (ii) will not permit any Restricted Subsidiary to issue any of
its Capital Stock (other than, to the extent necessary or mandated by
applicable law, shares of its Capital Stock constituting directors' qualifying
shares or the ownership by foreign nationals of Capital Stock of any Restricted
Subsidiary) to any Person other than to the Issuer or a Wholly Owned
Subsidiary.
SECTION 4.11. Limitation on Liens. The Issuer will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien on any of its property or assets (including Capital
Stock), whether owned on the Issue Date or thereafter acquired, securing any
obligation, other than Permitted Liens, unless contemporaneously therewith
effective provision is made to secure the Notes equally and ratably with (or on
a senior basis to, in the case of Subordinated Obligations) such obligation for
so long as such obligation is so secured.
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SECTION 4.12. Limitation on Sale/Leaseback Transactions. The
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (i) the
Issuer or such Restricted Subsidiary would be entitled to (A) Incur
Indebtedness in an amount equal to the Attributable Indebtedness with respect
to such Sale/Leaseback Transaction pursuant to Section 4.3 and (B) create a
Lien on such property securing such Attributable Indebtedness without equally
and ratably securing the Notes pursuant to Section 4.11, (ii) the net cash
proceeds received by the Issuer or any Restricted Subsidiary in connection with
such Sale/Leaseback Transaction are at least equal to the fair value (as
determined in good faith by the Board of Directors of the Issuer) of such
property and (iii) the transfer of such property is permitted by, and the
Issuer or such Restricted Subsidiary applies the proceeds of such transaction
in compliance with, Section 4.7.
SECTION 4.13. Compliance with Laws. The Issuer shall comply,
and shall cause each of its Restricted Subsidiaries to comply, with all
applicable statutes, rules, regulations, orders and restrictions of the United
States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
for such noncompliances as are not in the aggregate reasonably likely to have a
material adverse effect on the financial condition or results of operations of
the Issuer and its Subsidiaries, taken as a whole.
SECTION 4.14. Compliance Certificate. The Issuer shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Issuer an Officer's Certificate signed by the chief executive officer, the
chief financial officer or the chief accounting officer stating that in the
course of the performance by the signer of his duties as an Officer of the
Issuer he would normally have knowledge of any Default or Event of Default and
whether or not the signers know of any Default or Event of Default that
occurred during such period. If he does, the certificate shall describe the
Default or Event of Default, its status and what action the Issuer is taking or
proposes to take with respect thereto. The Issuer also shall comply with TIA
Section 314(a)(4).
SECTION 4.15. Further Instruments and Acts. Upon reasonable
request of the Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
SECTION 4.16. Maintenance of Office or Agency. The Issuer
shall maintain the office or agency required under Section 2.3. The Issuer
shall give prior written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Issuer 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.
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SECTION 4.17. Corporate Existence. Except as otherwise
permitted by Article V and Section 4.9, the Issuer shall do or cause to be
done, at its own cost and expense, all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate, partnership or
limited liability company existence of each of its Significant Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Issuer
and each such Subsidiary; provided, however, that the Issuer shall not be
required to preserve, with respect to itself, any material right or franchise
and, with respect to any of its Significant Subsidiaries, any such existence,
material right or franchise, if the Board of Directors of the Issuer shall
determine in good faith (such determination to be evidenced by a board
resolution), that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer and the Subsidiaries, taken as a whole.
SECTION 4.18. Payment of Taxes and Other Claims. The Issuer
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon it or any of its Restricted Subsidiaries or
properties of it or any of its Restricted Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Restricted Subsidiaries; provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for which adequate
reserves, to the extent required under GAAP, have been taken.
SECTION 4.19. Maintenance of Properties and Insurance. (a)
The Issuer shall, and shall cause each of its Significant Subsidiaries to,
maintain its material properties in good working order and condition (subject
to ordinary wear and tear) and make or cause to be made all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business, all as in the reasonable judgment
of the Issuer is necessary so that the business carried on by Issuer and its
Significant Subsidiaries may be actively conducted; provided, however, that
nothing in this Section 4.19 shall prevent the Issuer or any of its
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the good faith judgment of the Issuer
or the Subsidiary, as the case may be, desirable in the conduct of their
respective businesses and is not disadvantageous in any material respect to the
Holders.
(b) The Issuer shall provide or cause to be provided, for
itself and each of its Significant Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of the Issuer, are adequate and appropriate for the conduct
of the business of the Issuer and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America, any
state thereof or any agency or instrumentality of such governments, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Issuer, for companies similarly situated in the
industry.
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ARTICLE V
Successor Issuer
SECTION 5.1. When the Issuer May Merge or Transfer Assets.
The Issuer will not consolidate with or merge with or into, or convey, transfer
or lease, in one transaction or a series of transactions, all or substantially
all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person
(the "Successor Issuer") will be a Person organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia and the Successor Issuer (if not the Issuer) will
expressly assume, by supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations
of the Issuer under the Notes and this Indenture;
(ii) immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the Successor Issuer or any Restricted
Subsidiary as a result of such transaction as having been Incurred by
the Successor Issuer or such Restricted Subsidiary at the time of such
transaction), no Default or Event of Default will have occurred and be
continuing;
(iii) except in the case of a merger of the Issuer
into a Wholly Owned Subsidiary or a merger entered into solely for the
purpose of reincorporating the Issuer in another jurisdiction,
immediately after giving effect to such transaction on a pro forma
basis as if such transaction had occurred at the beginning of the
applicable four quarter period, the Issuer or the Person formed by or
surviving any such consolidation or merger (if other than the Issuer),
or to which such conveyance, transfer, lease or other disposition
shall have been made, would have been permitted to incur at least
$1.00 of additional Indebtedness under Section 4.3(a); and
(iv) the Issuer will have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture
(if any) comply with this Indenture, as set forth in this Indenture.
The Successor Issuer will succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture, but
the predecessor Issuer in the case of a conveyance, transfer or lease of all
its assets or substantially all its assets will be released from the
obligations under this Indenture and the Notes, including without limitation
the obligation to pay the principal of and interest on the Notes.
ARTICLE VI
Defaults and Remedies
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SECTION 6.1. Events of Default. An "Event of Default" occurs
if:
(1) the Issuer defaults in any payment of interest on any
Note when the same becomes due and payable, and such default continues
for a period of 30 days;
(2) the Issuer defaults in the payment of the principal of
any Note when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon required repurchase, upon declaration
or otherwise;
(3) the Issuer fails to comply with its obligations under
Article V;
(4) the Issuer fails to comply with Section 4.2, 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 (other than a failure to
purchase Notes when required pursuant to Section 4.7 or 4.9, which
failure shall constitute an Event of Default under Section 6.1(2)) and
such failure continues for 30 days after the notice specified below;
(5) the Issuer fails to comply with any of its agreements in
the Notes or this Indenture (other than those referred to in (1), (2),
(3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(6) the Issuer or any Significant Subsidiary of the Issuer
fails to pay any Indebtedness within any applicable grace period
provided in such Indebtedness after final maturity or the acceleration
of any such Indebtedness by the holders thereof because of a default
if the total amount of such Indebtedness unpaid or accelerated exceeds
$5.0 million or its foreign currency equivalent at the time;
(7) the Issuer or a Significant Subsidiary of the Issuer
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case in which it is the debtor;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any
Significant Subsidiary of the Issuer in an involuntary case;
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(B) appoints a Custodian of the Issuer or any
Significant Subsidiary or for any substantial part of its
property of the Issuer or any Significant Subsidiary; or
(C) orders the winding up or liquidation of the
Issuer or any Significant Subsidiary of the Issuer;
(or any similar relief is granted under any foreign laws) and the
order, decree or relief remains unstayed and in effect for 90 days;
(9) any final judgment or decree for the payment of money in
excess of $5.0 million (net of any amounts with respect to which a
creditworthy insurance company has acknowledged full liability
(subject to any deductible amounts of less than $5.0 million required
to be paid by the Issuer or the Significant Subsidiary of the Issuer
in accordance with the applicable insurance policy)) is rendered
against the Issuer or any Significant Subsidiary of the Issuer and
either (A) an enforcement proceeding has been commenced by any
creditor upon such judgment or decree or (B) such judgment or decree
remains unpaid and outstanding for a period of 60 days following such
judgment and is not discharged, waived or stayed within 10 days after
notice; or
(10) the failure of the Series B Investors to have purchased
2,750,000 shares of the Series B Preferred Stock for an aggregate
purchase price of $11.0 million by April 1, 1999.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4), (5) and (9) of this Section 6.1 is
not an Event of Default until the Trustee by notice to the Issuer or the
Holders of at least 25% in aggregate principal amount of the outstanding Notes
by notice to the Issuer give notice of the Default and the Issuer does not cure
such Default within the time specified in said clause (4), (5) or (9) after
receipt of such notice. Such notice must specify the Default, demand that it
be remedied and state that such notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after
its knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Event of Default under clause (6) or (10) of this
Section 6.1 and any event which with the giving of notice or the lapse of time
would become an Event of Default under clause (4), (5) or (9) of this Section
6.1 and what action the Issuer is taking or proposes to take with respect
thereto.
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SECTION 6.2. Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.1(7) or (8) with respect to the
Issuer) occurs and is continuing, the Trustee by notice to the Issuer, or the
Holders of at least 25% in aggregate principal amount at maturity of the
outstanding Notes by notice to the Issuer, may declare the Accreted Value of
and accrued but unpaid interest on all the Notes to be due and payable. Upon
such a declaration, such Accreted Value and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.1(7) or (8) with
respect to the Issuer occurs and is continuing, the Accreted Value of and
accrued interest on all the Notes shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in aggregate principal amount at
maturity of the outstanding Notes by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration and the Trustee has been paid all amounts due to it
pursuant to Section 7.7. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of Accreted Value of 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. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are, to the extent
permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount at maturity of the Notes then
outstanding by notice to the Trustee may waive any past or existing Default and
its consequences except (i) a Default in the payment of the principal of or
interest on a Note or (ii) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Noteholder affected.
When a Default is waived, it is deemed cured, and any Event of Default arising
therefrom shall be deemed to have been cured, but no such waiver shall extend
to any subsequent or other Default or impair any consequent right.
SECTION 6.5. Control by Majority. Upon provision of
reasonable indemnity to the Trustee satisfactory to the Trustee, the Holders of
a majority in aggregate principal amount of the Notes then outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee, which may rely on opinions of counsel, may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1, that the Trustee determines is unduly prejudicial to
the rights of other Noteholders or
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would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder may not pursue
any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee previous written
notice stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal
amount at maturity of the Notes then outstanding make a written
request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in aggregate principal amount
of the Notes then outstanding do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Accreted Value of and interest on the Notes held by
such Holder, on or after the respective due dates expressed in the Notes, 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 specified in Section 6.1(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.7.
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 and the Noteholders
allowed in any judicial proceedings relative to the Issuer, its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other securities or property payable or deliverable on
any such claims and to distribute the same, and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make payments to the Trustee and, in the event that
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the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money
or property pursuant to this Article VI, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Noteholders for amounts due and unpaid on the
Notes for Accreted Value and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for Accreted Value and interest, respectively; and
THIRD: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
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 and expenses,
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 or a suit by Holders of more than 10% in aggregate principal amount
of the outstanding Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuer
(to the extent it may lawfully do so) shall 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 wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
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ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) 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 the TIA and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section 7.1.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties
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hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely
upon, and shall be fully protected from acting or refraining from acting, on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
request an Officer's Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Notes unless either (1) a Trust
Officer shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Issuer or by any Holder of the Notes.
SECTION 7.3. 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 Issuer or its respective Affiliates with the
same rights it would have if it were not Trustee.
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Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or an Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
must mail to each Noteholder notice of the Default within the earlier of 90
days after it occurs or 30 days after it is known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Note, the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is not opposed to the interests of
Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each January 15 beginning with the January 15 following the
date of this Indenture, and in any event prior to March 15 in each year, the
Trustee shall mail to each Noteholder a brief report dated as of such January
15 that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b). The Trustee shall promptly deliver to the Issuer a copy of
any report it delivers to Holders pursuant to this Section 7.6.
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Trustee with the SEC and each stock exchange
(if any) on which the Notes are listed. The Issuer agrees to notify promptly
the Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Issuer shall
pay to the Trustee from time to time such compensation for its services as the
Issuer and the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon request for all
reasonable fees and expenses, including out-of-pocket expenses, incurred or
made by it in connection with the performance of its duties hereunder,
including costs of collection, in addition to such compensation for its
services, except any such expense, disbursement or advance as may arise from
its negligence, wilful misconduct or bad faith, unless the Trustee shall have
complied with the applicable standard of care required by the TIA. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Trustee shall provide the Issuer reasonable notice of any expenditure not in
the ordinary course of business; provided that prior approval by the Issuer of
any such expenditure shall not be a requirement for the making of such
expenditure nor for reimbursement by the Issuer thereof. The Issuer shall
indemnify each of the Trustee and any predecessor Trustees against any and all
loss, damage, claim, liability or expense (including reasonable attorneys' fees
and expenses) (other
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than taxes applicable to the Trustee's compensation hereunder) incurred by it
in connection with the acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Issuer
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Issuer shall not relieve the Issuer of its obligations
hereunder. The Issuer shall defend the claim and the Trustee may have separate
counsel, and the Issuer will pay the reasonable fees and expenses of such
counsel. The Issuer need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith, unless the Trustee shall have
complied with the applicable standard of care required by the TIA.
To secure the Issuer's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Notes.
The Issuer's payment obligations pursuant to this Section 7.7
shall survive the resignation or removal of the Trustee and discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(7) or (8) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law,
provided, however, that this shall not affect the Trustee's rights as set forth
in the preceding paragraph or Section 6.10.
SECTION 7.8. Replacement of Trustee. The Trustee may resign
at any time with 30 days notice to the Issuer. The Holders of a majority in
principal amount of the Notes then outstanding, may remove the Trustee with 30
days notice to the Trustee and the Issuer and may appoint a successor Trustee.
The Issuer shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
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succession to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, provided that such corporation
shall be eligible under this Article VII and TIA Section 3.10(a).
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $250,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuer. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance.
(a) When (i) the Issuer delivers to the Trustee all outstanding Notes (other
than Notes replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Notes have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article III hereof
or the Notes will become due and payable at their Stated Maturity within 91
days, or the Notes are to be called for redemption within 91 days under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer, and, in each
case of this clause (ii), the Issuer irrevocably deposits or causes to be
deposited with the Trustee funds sufficient to pay at maturity or upon
redemption all outstanding Notes, including interest thereon to maturity or
such redemption date (other than Notes replaced pursuant to Section 2.7), and
if in either case the Issuer pays all other sums payable hereunder by the
Issuer, then this Indenture shall, subject to Section 8.1(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of
this Indenture on demand of the Issuer accompanied by an Officer's Certificate
and an Opinion of Counsel from the Issuer that all conditions precedent
provided herein for relating to satisfaction and discharge of this Indenture
have been complied with and at the cost and expense of the Issuer.
(b) Subject to Sections 8.1(c) and 8.2, the Issuer at any
time may terminate (i) all of its obligations under the Notes and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.14, 4.18 and 4.19
and the operation of Sections 6.1(6), 6.1(7) (but only with respect to a
Significant Subsidiary), 6.1(8) (but only with respect to a Significant
Subsidiary), 6.1(9) and 5.1(iii) ("covenant defeasance option"). The Issuer
may exercise its legal defeasance option notwithstanding its prior exercise of
its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment
of the Notes may not be accelerated because of an Event of Default. If the
Issuer exercises its covenant defeasance option, payment of the Notes may not
be accelerated because of an Event of Default specified in Section 6.1(4),
6.1(5), 6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary),
6.1(8) (but only with respect to a Significant Subsidiary), 6.1(9), 6.1(10) or
because of the failure of the Issuer to comply with Section 5.1(iii).
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge
of those obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.3, 2.4, 2.5, 2.7, 4.1, 4.13, 4.15, 4.16, 4.17, 7.7,
7.8, 8.4, 8.5 and 8.6 shall survive until the Notes have been paid in full.
Thereafter, the Issuer's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
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SECTION 8.2. Conditions to Defeasance. The Issuer may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Issuer irrevocably deposits or causes to
be deposited in trust with the Trustee money or U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide cash at such times and in such amounts as will be sufficient
to pay principal and interest when due on all outstanding Notes
(except Notes replaced pursuant to Section 2.7) to maturity or
redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all outstanding
Notes (except Notes replaced pursuant to Section 2.7) to maturity or
redemption, as the case may be;
(iii) 91 days pass after the deposit is made and
during the 91-day period no Default specified in Section 6.1(7) or (8)
with respect to the Issuer occurs which is continuing at the end of
the period;
(iv) the deposit does not constitute a default
under any other material agreement binding on the Issuer;
(v) the Issuer delivers to the Trustee an Opinion
of Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option,
the Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Noteholders
will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred;
(vii) in the case of the covenant defeasance
option, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Noteholders will not recognize income,
gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the
same amounts and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not
occurred; and
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(viii) the Issuer delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Notes as
contemplated by this Article VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant
to this Article VIII. It shall apply the deposited money and the money from
U.S. Government Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
SECTION 8.4. Repayment to Issuer. The Trustee and the Paying
Agent shall promptly turn over to the Issuer upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Issuer upon written request any money
held by them for the payment of principal or interest that remains unclaimed
for one year after such principal and interest have become due and payable,
and, thereafter, Noteholders entitled to the money must look to the Issuer for
payment as general creditors.
SECTION 8.5. Indemnity for Government Obligations. The
Issuer shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations other
than any such tax, fee or other charge which by law is for the account of the
Holders of the defeased Notes; provided that the Trustee shall be entitled to
charge any such tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance with
this Article VIII 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 Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to this Article VIII until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, (a)
if the Issuer has made any payment of interest on or principal of any Notes
following the reinstatement of their obligations, the Issuer 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 and (b) unless otherwise required by any legal proceeding or any order or
judgment of any court or governmental authority, the Trustee or Paying Agent
shall return all such money and U.S. Government Obligations to the Issuer
promptly after receiving a written request therefor at any time, if such
reinstatement of the Issuer's obligations has occurred and continues to be in
effect.
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ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to or consent of
any Noteholder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Notes in
addition to or in place of certificated Notes (provided, however, that
the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are as described in Section 163(f)(2)(B) of the Code);
(iv) to add Guarantees with respect to the Notes;
(v) to secure the Notes;
(vi) to add to the covenants of the Issuer for the
benefit of the Noteholders or to surrender any right or power herein
conferred upon the Issuer;
(vii) to make any change that does not materially
and adversely affect the rights of any Noteholder; and
(viii) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA.
After an amendment under this Section 9.1 becomes effective,
the Issuer shall mail to Noteholders a notice briefly describing such
amendment. The failure to give such notice to all Noteholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.1.
SECTION 9.2. With Consent of Holders. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to any Noteholder
but with the written consent of the Holders of at least a majority in principal
amount at maturity of the Notes then outstanding (including consents obtained
in connection with a tender offer or exchange for Notes). However, without the
consent of each Noteholder of an outstanding Note affected, an amendment may
not:
(i) reduce the amount of Notes whose Holders must
consent to an amendment;
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(ii) reduce the rate of or extend the time for
payment of interest on any Note;
(iii) reduce the principal of or extend the Stated
Maturity of any Note;
(iv) reduce the premium payable upon the
redemption of any Note or change the time at which any Note may be
redeemed in accordance with Article III;
(v) make any Note payable in money other than
that stated in the Note;
(vi) impair the right of any Holder to receive
payment of principal of and interest on such Holder's Notes on or
after the due dates therefor or to institute suit for the enforcement
of any payment on or with respect to such Holder's Notes; or
(vii) make any change in this second sentence of
Section 9.2.
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, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective,
the Issuer shall mail to Noteholders a notice briefly describing such
amendment. The failure to give such notice to all Noteholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Note shall bind the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation of
the consent or waiver is not made on the Note. After an amendment or waiver
becomes effective, it shall bind every Noteholder.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Noteholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Noteholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Notes. If an
amendment changes the terms of a Note, the Trustee may require the Holder of
the Note to deliver it to the
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Trustee. The Trustee may place an appropriate notation on the Note regarding
the changed terms and return it to the Holder. Alternatively, if the Issuer or
the Trustee so determine, the Issuer 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 to issue a new Note shall not
affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not materially and adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it.
In signing such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, in addition to the documents required
by Section 10.4, an Officer's Certificate and an Opinion of Counsel stating
that such amendment complies with the provisions of this Article IX; provided,
however, that Holders who do not consent, waive or agree to amend this
Indenture in the time frame set forth in such solicitation documents shall not
be entitled to any consideration offered for timely consent, waiver or
amendment, even if the consent, waiver or amendment is agreed to by sufficient
Holders to approve such consent, waiver or amendment to this Indenture.
SECTION 9.7. Payment for Consent. Neither the Issuer nor any
affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for, or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Miscellaneous
SECTION 10.1. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required
by the TIA shall control.
SECTION 10.2. Notices. Any notice or communication shall be
in writing and delivered in person, transmitted by facsimile machine, or mailed
by first-class mail or overnight air courier guaranteeing next day delivery
addressed as follows:
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if to the Issuer:
SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
The Issuer or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to the Noteholder at the Noteholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.3. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Issuer, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuer to the Trustee to
take or refrain from taking any action under this Indenture, the Issuer shall
furnish to the Trustee:
(i) an Officer's Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
the signer, 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 in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
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SECTION 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(i) a statement that the individual 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 statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such
individual, 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 individual, such covenant or condition has been complied with.
SECTION 10.6. When Notes Disregarded. In determining whether
the Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Notes outstanding at the
time shall be considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Registrar and the Paying Agent may make reasonable rules for
their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to
be open in the State of New York. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 10.9. GOVERNING LAW. THIS INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
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SECTION 10.10. No Recourse Against Others. No director,
officer, employee, incorporator or stockholder of the Issuer, as such, shall
have any liability for any obligations of the Issuer under the Notes, this
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
SECTION 10.11. Successors. All agreements of the Issuer in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple 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. One signed copy is enough
to prove this Indenture.
SECTION 10.13. Variable Provisions. The Issuer initially
appoints the Trustee as Paying Agent and Registrar and custodian with respect
to any Global Notes.
SECTION 10.14. Qualification of Indenture. The Issuer shall
qualify this Indenture under the TIA in accordance with the terms and
conditions of the Registration Rights Agreement (as defined in the Appendix
hereto) and shall pay all reasonable costs and expenses (including attorneys'
fees for the Issuer, the Trustee and the Holders) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification
of this Indenture and the Notes. The Trustee shall be entitled to receive from
the Issuer any such Officer's Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 10.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 10.16. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
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RULE 144A/REGULATION S APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN
RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE NOTES
AND EXCHANGE NOTES
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix the following terms
shall have the meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees
and their respective successors and assigns.
"Exchange Notes" means the 12% Senior Discount Notes Due 2008
to be issued pursuant to this Indenture in connection with a Registered
Exchange Offer pursuant to the Registration Rights Agreement.
"Initial Purchasers" means Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc. and CIBC Xxxxxxxxxxx Corp.
"Initial Notes" means the 12% Senior Discount Notes Due 2008,
issued under this Indenture on or about the date hereof.
"Notes" means the Initial Notes, the Exchange Notes and the
Private Exchange Notes, treated as a single class.
"Notes Custodian" means the custodian with respect to a Global
Note (as appointed by the Depositary), or any successor person thereto and
shall initially be the Trustee.
"Private Exchange" means the offer by the Issuer, pursuant to
the Registration Rights Agreement, to the Initial Purchasers to issue and
deliver to each Initial Purchaser, in exchange for the Initial Notes held by
the Initial Purchaser as part of its initial distribution, a like aggregate
principal amount at maturity of Private Exchange Notes.
"Private Exchange Notes" means the 12% Senior Discount Notes
Due 2008, if any, to be issued pursuant to this Indenture to the Initial
Purchasers in a Private Exchange.
"Purchase Agreement" means the Purchase Agreement dated June
23, 1998, among the Issuer and the Initial Purchasers.
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"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Issuer,
pursuant to the Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such Holders, in exchange for the Initial Notes,
a like aggregate principal amount of Exchange Notes registered under the
Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of June 26, 1998 among the Issuer and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the registration
statement issued by the Issuer, in connection with the offer and sale of
Initial Notes or Private Exchange Notes, pursuant to Section 2 of the
Registration Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 2.3(b) hereof.
1.2 Other Definitions
Defined in
----------
Term Section:
---- -------
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
"Global Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
2. The Notes.
2.1 Form and Dating.
The Initial Notes are being offered and sold by the
Issuer pursuant to the Purchase Agreement.
(a) Global Notes. Initial Notes offered and sold
to a QIB in reliance on Rule 144A or in reliance on Regulation S, in each case
as provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global Notes in definitive, fully registered form without
interest coupons with the global securities legend and restricted securities
legend set forth in Exhibit 1 hereto (each, a "Global Note"), which shall be
deposited on behalf of the purchasers of the Initial Notes represented thereby
with the Trustee as custodian for the Depositary (or with such other custodian
as the Depositary may
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direct), and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b)
shall apply only to a Global Note deposited with or on behalf of the
Depositary.
The Issuer shall execute and the Trustee shall, in
accordance with this Section 2.1(b), authenticate and deliver initially one or
more Global Notes that (i) shall be registered in the name of the Depositary
for such Global Note or Global Notes or in the name of the nominee of such
Depositary and (ii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions or held by the Trustee as custodian
for the Depositary.
Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as the
custodian of the Depositary or under such Global Note, and the Depositary may
be treated by the Issuer, the Trustee and any agent of the Issuer or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the
Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
a holder of a beneficial interest in any Global Note.
(c) Certificated Notes. Except as provided in
this Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in
Global Notes will not be entitled to receive physical delivery of certificated
Notes.
2.2 Authentication. The Trustee shall authenticate and
deliver: (1) Initial Notes for original issue in an aggregate principal amount
at maturity of U.S. $225,238,000 and (2) Exchange Notes or Private Exchange
Notes for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to the Registration Rights Agreement, for a like
principal amount at maturity of Initial Notes, in each case upon a written
order of the Issuer signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Issuer. Such order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and whether the Notes are to be
Initial Notes, Exchange Notes or Private Exchange Notes. The aggregate
principal amount at maturity of Notes outstanding at any time may not exceed
U.S. $225,238,000 except as provided in Section 2.7 of this Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of
Global Notes. (i) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on
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transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Note shall deliver
to the Registrar a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in the Global Note. The
Registrar shall, in accordance with such instructions instruct the Depositary
to credit to the account of the Person specified in such instructions a
beneficial interest in the Global Note and to debit the account of the Person
making the transfer of the beneficial interest in the Global Note being
transferred.
(ii) Notwithstanding any other provisions of this
Appendix (other than the provisions set forth in Section 2.4), a
Global Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary of another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
(iii) In the event that a Global Note is exchanged
for Notes in definitive registered form pursuant to Section 2.4 of
this Appendix or Section 2.9 of this Indenture prior to the
consummation of a Registered Exchange Offer or the effectiveness of a
Shelf Registration Statement with respect to such Notes, such Notes
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Notes intended to ensure that such transfers comply with
Rule 144A or Regulation S, as the case may be) and such other
procedures as may from time to time be adopted by the Issuer.
(b) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Note certificate evidencing the Global
Notes (and all Notes issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER,
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED
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OR OTHERWISE TRANSFERRED, ONLY (I) INSIDE THE UNITED STATES TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note represented by
a Global Note) pursuant to Rule 144 under the Securities Act, in the
case of any Transfer Restricted Note that is represented by a Global
Note, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Note for a certificated Note that does not bear
the legend set forth above and rescind any restriction on the transfer
of such Transfer Restricted Note, if the Holder certifies in writing
to the Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth
on the reverse of the Note).
(iii) After a transfer of any Initial Securities or
Private Exchange Securities during the period of the effectiveness of
and pursuant to a Shelf Registration Statement with respect to such
Initial Securities or Private Exchange Securities, as the case may be,
all requirements pertaining to legends on such Initial Securities or
such Private Exchange Notes will cease to apply, but the requirements
requiring such Initial Notes or such Private Exchange Notes issued to
certain Holders be issued in global form will continue to apply, and
Initial Notes or Private Exchange Notes in global form without legends
will be available to the transferee of the Holder of such Initial
Notes or Private Exchange Notes upon exchange of such transferring
Holder's Initial Notes or Private Exchange Notes or directions to
transfer such Holder's interest in the Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Notes pursuant to which Holders of
such Initial Notes are offered Exchange Notes in exchange for their
Initial Notes, all requirements pertaining to such Initial Notes that
Initial Notes issued to certain Holders be issued in global form will
continue to apply and Initial Notes in global form with the restricted
securities legend set forth in Exhibit 1 hereto will be available to
Holders of such Initial Notes that do not exchange their Initial
Notes, and Exchange Notes in global form without the
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restriction securities legend will be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with
respect to the Initial Notes pursuant to which Holders of such Initial
Notes are offered Private Exchange Notes in exchange for their Initial
Notes, all requirements pertaining to such Initial Notes that Initial
Notes issued to certain Holders be issued in global form will still
apply, and Private Exchange Notes in global form with the restricted
securities legend set forth in Exhibit 1 hereto will be available to
Holders that exchange such Initial Notes in such Private Exchange.
(c) Cancellation or Adjustment of Global Note. At such
time as all beneficial interests in a Global Note have either been exchanged
for certificated Notes, redeemed, repurchased or canceled, such Global Note
shall be returned to the Depositary for cancellation or retained and canceled
by the Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for certificated Notes, redeemed,
repurchased or canceled, the principal amount of Notes represented by such
Global Note shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Notes Custodian for such Global Note)
with respect to such Global Note, by the Trustee or the Notes Custodian, to
reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges
of Notes.
(i) To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate
certificated Notes and Global Notes at the Registrar's or any
co-registrar's request, subject to terms and conditions of this
Indenture.
(ii) No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other
than any such transfer taxes, assessments or similar governmental
charge payable upon exchange or transfer pursuant to Sections 3.6,
4.7, 4.9 and Section 9.5 of this Indenture.
(iii) The Registrar or any co-registrar shall not be
required to register the transfer of or exchange of (a) any
certificated Note selected for redemption in whole or in part pursuant
to Article III of this Indenture, except the unredeemed portion of any
certificated Note being redeemed in part, or (b) any Note for a period
beginning 15 Business Days before the mailing of a notice of an offer
to repurchase or redeem Notes or 15 Business Days before an interest
payment date.
(iv) Prior to the due presentation for registration
of transfer of any Note, the Issuer, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and interest on such
Note
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and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Issuer, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) All Notes issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.
(e) No Obligation of the Trustee or the Issuer.
(i) The Trustee and the Issuer shall have no
responsibility or obligation to any beneficial owner of a Global Note,
a member of, or a participant in the Depositary or other Person with
respect to the accuracy of the records of the Depositary or its
nominee or of any participant or member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Notes shall be given or made only to
or upon the order of the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Note). The rights
of beneficial owners in any Global Note shall be exercised only
through the Depositary subject to the applicable rules and procedures
of the Depositary. The Trustee and the Issuer may rely and shall be
fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any
beneficial owners.
(ii) The Trustee and the Issuer shall have no
obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in
any Note (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.4 Certificated Notes.
(a) A Global Note deposited with the Depositary or with
the Trustee as custodian for the Depositary pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of certificated Notes
in an aggregate principal amount at maturity equal to the principal amount at
maturity of such Global Note, in exchange for such Global Note, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global Note
or if at any time such Depositary ceases to be a "clearing agency" registered
under the Exchange Act and a successor depositary is not appointed by the
Issuer within 90 days of such notice, or (ii) an
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Event of Default has occurred and is continuing or (iii) the Issuer, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Note, an equal aggregate principal
amount at maturity of certificated Initial Notes of authorized denominations.
Any portion of a Global Note transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Note delivered in exchange for an interest in
the Global Note shall, except as otherwise provided by Section 2.3(d), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Note may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a), the Issuer will promptly make available to the
Trustee a reasonable supply of certificated Notes in definitive, fully
registered form without interest coupons.
75
EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEES, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER, THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I)
INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT
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UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Original Issue Discount Legend]
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF
SECTIONS 1272, 1273 AND 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE CODE OF
1986, AS AMENDED, THE ISSUE PRICE OF THIS NOTE IS 55.497% OF ITS PRINCIPAL
AMOUNT AT MATURITY, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $445.03 PER $1,000
OF PRINCIPAL AMOUNT AT MATURITY, THE ISSUE DATE IS JUNE 26, 1998 AND THE YIELD
TO MATURITY IS 12%.
77
3
SPECTRASITE HOLDINGS, INC.
No. Principal Amount $
-- -------------
CUSIP NO.
------- --
12% Senior Discount Note Due 2008
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of
________________________ Dollars on July 15, 2008.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Note are set forth on the other
side of this Note.
Dated: SPECTRASITE HOLDINGS, INC.
By:
----------------------------------
By:
----------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
--------------------------
Authorized Signatory
78
[FORM OF REVERSE SIDE OF INITIAL NOTE]
(Reverse of Note)
12% Senior Discount Note Due 2008
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuer"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above; provided,
however, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this Note at a rate
of 0.50% per annum from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration
Defaults have been cured, calculated on the Accreted Value of this Note as of
the date on which such interest is payable; provided, however, that in no event
shall the aggregate amount of such additional interest exceed 0.50% per annum.
Such interest is payable in addition to any other interest payable from time to
time with respect to this Note. The Trustee will not be deemed to have notice
of a Registration Default until it shall have received actual notice of such
Registration Default.
Until July 15, 2003, the Notes will accrue at a rate of 12%
per annum and be compounded semi-annually on each Semi-Annual Accrual Date with
respect to the Notes, but, except as described herein, will not be payable in
cash. Interest on the Accreted Value of each Note as of July 15, 2003 will
accrue at the same rate but will be paid semi-annually commencing January 15,
2004, to Holders of record at the close of business on the January 1 or July 1
immediately preceding the interest payment date of January 15 and July 15 of
each year. The Issuer shall pay interest on overdue principal at 1% per annum
in excess of the rate borne by the Notes to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the Issuer
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal and/or interest. The Issuer will pay interest (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the January 1 or July 1 next preceding the interest
payment date even if Notes are cancelled, repurchased or redeemed after the
record date and on or before the interest payment date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Issuer will pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Issuer may pay principal and interest by check payable in such money. It may
mail an interest check to a Holder's registered address.
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2
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of
June 26, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Issuer and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of
the Indenture (the "TIA"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are
subject to all such terms, and Noteholders are referred to the Indenture and
the TIA for a statement of those terms.
The Notes are unsecured senior obligations of the Issuer
limited to $225,238,000 aggregate principal amount at maturity (subject to
Section 2.7 of the Indenture), all of which are being offered on the Issue Date
This Note is one of the Initial Notes referred to in the
Indenture. The Notes include the Initial Notes and any Private Exchange Notes
and Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes, the
Private Exchange Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the Incurrence of Indebtedness by the Issuer and its Restricted Subsidiaries,
the payment of dividends and other distributions on the Capital Stock of the
Issuer and its Restricted Subsidiaries, the purchase or redemption of Capital
Stock of the Issuer and Capital Stock of such Restricted Subsidiaries, certain
purchases or redemptions of Subordinated Obligations, the sale or transfer of
assets and Capital Stock of Restricted Subsidiaries, the issuance or sale of
Capital Stock of Restricted Subsidiaries, the investments of the Issuer and its
Subsidiaries and transactions with Affiliates. In addition, the Indenture
limits the ability of the Issuer and its Restricted Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the following paragraph, the Notes will
not be redeemable at the option of the Issuer prior to July 15, 2003.
Thereafter, the Notes will be redeemable, at the Issuer's option, in whole or
in part, at any time or from time to time, upon
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3
not less than 30 nor more than 60 days' prior notice mailed by first-class mail
to each Holder's registered address, at the following redemption prices
(expressed as a percentage of the Accreted Value), plus accrued and unpaid
interest, if any, on such Accreted Value to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the 12-month period
commencing on July 15 of the years set forth below:
REDEMPTION
PERIOD PRICE
----------
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 106.000%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 104.000%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . 102.000%
2006 and thereafter . . . . . . . . . . . . . . . . . . 100.000%
In addition, at any time and from time to time prior to July
15, 2001, the Issuer may redeem in the aggregate up to 25% of the aggregate
principal amount at maturity of the Notes with the proceeds of one or more
Equity Offerings, at a redemption price (expressed as a percentage of the
Accreted Value thereof) of 112% plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 75% of the aggregate principal amount at
maturity of the Notes must remain outstanding after each such redemption
(excluding Notes held by the Issuer or any of its Subsidiaries); provided
further, that such redemption shall occur within 60 days of the date of closing
of such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed
on the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions thereof) called
for redemption.
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4
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Issuer to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the Accreted Value thereof as of
the date of repurchase, plus accrued and unpaid interest, if any, to the date
of repurchase as provided in, and subject to the terms of, the Indenture.
8. Registration Rights
The Issuer is party to a Registration Rights Agreement, dated
as of June 26, 1998, among the Issuer, Credit Suisse First Boston Corporation,
Xxxxxx Brothers Inc. and CIBC Xxxxxxxxxxx Corp. pursuant to which it is
obligated to pay Additional Interest (as defined therein) upon the occurrence
of certain Registration Defaults (as defined therein).
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register, transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 business days before a selection of Notes
to be redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 business days before an interest payment date and ending on
such interest payment date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for one year after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Issuer at its request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
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12. Defeasance
Subject to certain conditions set forth in the Indenture, the
Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the
Notes to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount at maturity of the
outstanding Notes and (ii) any default or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in principal
amount at maturity of the outstanding Notes. Subject to certain exceptions set
forth in the Indenture, without the consent of any Noteholder, the Issuer and
the Trustee may amend the Indenture or the Notes to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the
Indenture, or to provide for uncertificated Notes in addition to or in place of
certificated Notes, or to add guarantees with respect to the Notes or to secure
the Notes, or to add additional covenants of or surrender rights and powers
conferred on the Issuer, or to make any change that does not materially and
adversely affect the rights of any Noteholder, or to comply with any request of
the SEC in connection with qualifying the Indenture under the Act.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due, continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise, (iii) the failure by the Issuer to comply with its obligations
under Article V of the Indenture, (iv) the failure by the Issuer to comply for
30 days after notice with any of its obligations under the covenants described
under Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 of the
Indenture (in each case, other than a failure to purchase Notes), (v) the
failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $5.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the Issuer,
(viii) any final judgment or decree for the payment of money in excess of $5.0
million (net of any amounts with respect to which a creditworthy insurance
company has acknowledged full liability (subject to any deductible amounts of
less than $5.0 million required to be paid by the Issuer or the Significant
Subsidiary of the Issuer in accordance with the applicable insurance policy))
is rendered against the Issuer or any Significant Subsidiary of the Issuer
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and either (A) an enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) such judgment or decree remains unpaid and
outstanding for a period of 60 days following such judgment and is not
discharged, waived or stayed within 10 days after notice, or (ix) the failure
of the Series B Investors to have purchased 2,750,000 shares of the Series B
Preferred Stock for an aggregate purchase price of $11.0 million by April 1,
1999. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes may declare
all the Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes being due
and payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest) if
it determines that withholding notice is not opposed to their interest.
15. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of
the Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. This waiver and
release are part of the consideration for issuance of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
18. Abbreviations
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7
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it
the text of this Note in larger type. Requests may be made to: SpectraSite
Holdings, Inc., 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000,
Attention: Chief Financial Officer.
85
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------
--------------------------------------
--------------------------------------
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Issuer. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Date: Your Signature:
-------------------- -------------------
Sign exactly as your name appears on
the other side of this Note.
Signature Guarantee:
------------------------------
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Issuer or any Affiliate of the Issuer, the
undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW:
(1)[ ] to the Issuer; or
(2)[ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3)[ ] inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that
86
2
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4)[ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
(5)[ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than
the registered holder thereof; provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Issuer
has reasonably requested to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended, such as the exemption
provided by Rule 144 under such Act.
Date: Your Signature:
-------------------- -------------------
Sign exactly as your name appears on
the other side of this Note.
Signature Guarantee:
------------------------------
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
87
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Issuer as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
---------------- ------------------------------
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7 [ ]
Section 4.9 [ ]
If you want to elect to have only part of this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, state the amount you elect to
have purchased (must be integral multiple of $1,000): $
88
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of decrease in Amount of increase in Principal Amount at Signature of
Exchange Principal Amount at Principal Amount at Maturity of this authorized officer of
Maturity of this Maturity of this Global Note following Trustee or Notes
Global Note Global Note such decrease or Custodian
increase
89
EXHIBIT A
[FORM OF FACE OF EXCHANGE NOTE [OR PRIVATE
EXCHANGE NOTE]]
*/
**/
***/
SPECTRASITE HOLDINGS, INC.
No. Principal Amount $
-- -------------
CUSIP NO.
---------
12% Senior Discount Note Due 2008
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of
________________________ Dollars on July 15, 2008.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Additional provisions of this Note are set forth on the other
side of this Note.
Dated: SPECTRASITE HOLDINGS, INC.
By:
----------------------------------
By:
----------------------------------
----------------------------
*/ [If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to Appendix A and the attachment from
such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".]
**/ [If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its
initial allotment, add the Restricted Securities Legend from Exhibit 1
to Appendix A and replace the Assignment Form included in such Exhibit
1.]
***/ [Add the Original Issue Discount Legend from Exhibit 1 to Appendix A.]
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
--------------------------
Authorized Signatory
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[FORM OF REVERSE SIDE OF EXCHANGE NOTE [OR
PRIVATE EXCHANGE NOTE]]
12% Senior Discount Note Due 2008
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuer"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above[; provided,
however, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this Note at a rate
of 0.50% per annum from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration
Defaults have been cured, calculated on the Accreted Value of this Note as of
the date on which such interest is payable; provided, however, that in no event
shall the aggregate amount of such additional interest exceed 0.50% per annum.
Such interest is payable in addition to any other interest payable from time to
time with respect to this Note. The Trustee will not be deemed to have notice
of a Registration Default until it shall have received actual notice of such
Registration Default].****/
Until July 15, 2003, the Notes will accrue at a rate of 12%
per annum and be compounded semi-annually on each Semi-Annual Accrual Date with
respect to the Notes, but, except as described herein, will not be payable in
cash. Interest on the Accreted Value of each Note as of July 15, 2003 will
accrue at the same rate but will be paid semi-annually commencing January 15,
2004, to Holders of record at the close of business on the January 1 or July 15
immediately preceding the interest payment date of January 15 and July 15 of
each year. The Issuer shall pay interest on overdue principal at 1% per annum
in excess of the rate borne by the Notes to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the Issuer
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal and/or interest. The Issuer will pay interest (except
defaulted interest) to the Persons who are registered
-----------------------------
****/ Insert if at the time of issuance of the Exchange Security or Private
Exchange Security (as the case may be) neither the Registered Exchange
Offer has been consummated nor a Shelf Registration Statement has been
declared effective in accordance with the Registration Rights
Agreement.
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Holders of Notes at the close of business on the January 1 or July 1
next preceding the interest payment date even if Notes are cancelled,
repurchased or redeemed after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Issuer will pay principal and
interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the
Issuer may pay principal and interest by check payable in such money.
It may mail an interest check to a Holder's registered address.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar.
The Issuer may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of
June 26, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Issuer and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of
the Indenture (the "TIA"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are
subject to all such terms, and Noteholders are referred to the Indenture and
the TIA for a statement of those terms.
The Notes are unsecured senior obligations of the Issuer
limited to $225,238,000 aggregate principal amount at maturity (subject to
Section 2.7 of the Indenture), all of which are being offered on the Issue
Date.
This Note is one of the Exchange Notes referred to in the
Indenture. The Notes include the Initial Notes and any Private Exchange Notes
and Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes, the
Private Exchange Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on
the Incurrence of Indebtedness by the Issuer and its Restricted Subsidiaries,
the payment of dividends and other distributions on the Capital Stock of the
Issuer and its Restricted Subsidiaries, the purchase or redemption of Capital
Stock of the Issuer and Capital Stock of such Restricted Subsidiaries, certain
purchases or redemptions of Subordinated Obligations, the sale or transfer of
assets and Capital Stock of Restricted Subsidiaries, the issuance or sale of
Capital Stock of Restricted Subsidiaries, the investments of the Issuer and its
Subsidiaries and transactions with Affiliates. In addition, the Indenture
limits the ability of
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the Issuer and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the following paragraph, the Notes will
not be redeemable at the option of the Issuer prior to July 15, 2003.
Thereafter, the Notes will be redeemable, at the Issuer's option, in whole or
in part, at any time or from time to time, upon not less than 30 nor more than
60 days' prior notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed as a percentage of the
Accreted Value), plus accrued and unpaid interest, if any, on such Accreted
Value to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on July 15 of the
years set forth below:
REDEMPTION
PERIOD PRICE
----------
2003 . . . . . . . . . . . . . . . . . . . . . . . . . 106.000%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . 104.000%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . 102.000%
2006 and thereafter . . . . . . . . . . . . . . . . . . 100.000%
In addition, at any time and from time to time prior to July
15, 2001, the Issuer may redeem in the aggregate up to 25% of the aggregate
principal amount at maturity of the Notes with the proceeds of one or more
Equity Offerings, at a redemption price (expressed as a percentage of the
Accreted Value thereof) of 112% plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 75% of the aggregate principal amount at
maturity of the Notes must remain outstanding after each such redemption
(excluding Notes held by the Issuer or any of its Subsidiaries); provided
further, that such redemption shall occur within 60 days of the date of closing
of such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be
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redeemed in part but only in whole multiples of $1,000. If money sufficient to
pay the redemption price of and accrued and unpaid interest on all Notes (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Issuer to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the Accreted Value thereof as of
the date of repurchase, plus accrued and unpaid interest, if any, to the date
of repurchase as provided in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 business days before a selection of Notes
to be redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 business days before an interest payment date and ending on
such interest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for one year after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Issuer at its request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
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11. Defeasance
Subject to certain conditions set forth in the Indenture, the
Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the
Notes to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount at maturity of the
outstanding Notes and (ii) any default or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in principal
amount at maturity of the outstanding Notes. Subject to certain exceptions set
forth in the Indenture, without the consent of any Noteholder, the Issuer and
the Trustee may amend the Indenture or the Notes to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the
Indenture, or to provide for uncertificated Notes in addition to or in place of
certificated Notes, or to add guarantees with respect to the Notes or to secure
the Notes, or to add additional covenants of or surrender rights and powers
conferred on the Issuer, or to make any change that does not materially and
adversely affect the rights of any Noteholder, or to comply with any request of
the SEC in connection with qualifying the Indenture under the Act.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due, continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated
Maturity, upon optional redemption, upon required repurchase, upon declaration
or otherwise, (iii) the failure by the Issuer to comply with its obligations
under Article V of the Indenture, (iv) the failure by the Issuer to comply for
30 days after notice with any of its obligations under the covenants described
under Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 of the
Indenture (in each case, other than a failure to purchase Notes), (v) the
failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $5.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the Issuer,
(viii) any final judgment or decree for the payment of money in excess of $5.0
million (net of any amounts with respect to which a creditworthy insurance
company has acknowledged full liability (subject to any deductible amounts of
less than $5.0 million required to be paid by the Issuer or the Significant
Subsidiary of the Issuer in accordance with the applicable insurance policy))
is rendered against the Issuer or any Significant Subsidiary of the Issuer
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and either (A) an enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) such judgment or decree remains unpaid and
outstanding for a period of 60 days following such judgment and is not
discharged, waived or stayed within 10 days after notice, or (ix) the failure
of the Series B Investors to have purchased 2,750,000 shares of the Series B
Preferred Stock for an aggregate purchase price of $11.0 million by April 1,
1999. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes may declare
all the Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes being due
and payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of Principal or interest) if
it determines that withholding notice is not opposed to their interest.
14. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of
the Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. This waiver and
release are part of the consideration for issuance of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
17. Abbreviations
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Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it
the text of this Note in larger type. Requests may be made to: SpectraSite
Holdings, Inc., 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000,
Attention: Chief Financial Officer.
98
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Issuer. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Date: Your Signature:
-------------------- -------------------
Sign exactly as your
name appears on the
other side of this Note.
Signature Guarantee:
------------------------------
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
--------------------------------------------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7 [ ]
Section 4.9 [ ]
If you want to elect to have only part of this Note purchased
by the Issuer pursuant to Section 4.7 or 4.9 of the Indenture, state the amount
you elect to have purchased (must be integral multiple of $1,000): $
