Exhibit 4.1
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INDENTURE
Dated as of November 14, 2001
Between
TRITON PCS, INC.,
THE GUARANTORS PARTY HERETO,
and
THE BANK OF NEW YORK, Trustee
________________
8 3/4% Senior Subordinated Notes due 2011
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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(S)310(a)(1)................................................................... 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.
(a)(4)................................................................ N.A.
(a)(5)................................................................ 7.10
(b)................................................................... 7.08; 7.10; 13.02
(c)................................................................... N.A.
(S)311(a) ..................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
(S)312(a) ..................................................................... 2.05
(b)................................................................... 13.03
(c)................................................................... 13.03
(S)313(a) ..................................................................... 7.06
(b)(1)................................................................ N.A.
(b)(2)................................................................ 7.06
(c)................................................................... 7.06; 13.02
(d)................................................................... 7.06
(S)314(a) ..................................................................... 4.11; 4.12; 13.02
(b)................................................................... N.A.
(c)(1)................................................................ 13.04
(c)(2)................................................................ 13.04
(c)(3)................................................................ N.A.
(d)................................................................... N.A.
(e)................................................................... 13.05
(f)................................................................... N.A.
(S)315(a) ..................................................................... 7.01
(b)................................................................... 7.05; 13.02
(c)................................................................... 7.01(a)
(d)................................................................... 7.01(c)
(e)................................................................... 6.11
(S)316(a)(last sentence)....................................................... 2.09
(a)(1)(A)............................................................. 6.05
(a)(1)(B)............................................................. 6.04
(a)(2)................................................................ N.A.
(b)................................................................... 6.07
(c)................................................................... 10.04
(S)317(a)(1)................................................................... 6.08
(a)(2)................................................................ 6.09
(b)................................................................... 2.04
(S)318(a) ..................................................................... 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
(continued)
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.......................................... 1
SECTION 1.01 Definitions.................................................................... 1
SECTION 1.02 Other Definitions.............................................................. 15
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.............................. 15
SECTION 1.04 Rules of Construction.......................................................... 16
ARTICLE TWO THE SECURITIES...................................................................... 16
SECTION 2.01 Form and Dating................................................................ 16
SECTION 2.02 Execution and Authentication................................................... 18
SECTION 2.03 Registrar and Paying Agent..................................................... 18
SECTION 2.04 Paying Agent To Hold Money in Trust............................................ 18
SECTION 2.05 Securityholder Lists........................................................... 19
SECTION 2.06 Transfer and Exchange.......................................................... 19
SECTION 2.07 Replacement Securities......................................................... 26
SECTION 2.08 Outstanding Securities......................................................... 26
SECTION 2.09 Treasury Securities............................................................ 26
SECTION 2.10 Temporary Securities........................................................... 26
SECTION 2.11 Cancellation................................................................... 27
SECTION 2.12 Defaulted Interest............................................................. 27
SECTION 2.13 CUSIP or ISIN Number........................................................... 27
SECTION 2.14 Payments of Interest........................................................... 27
ARTICLE THREE REDEMPTION.......................................................................... 28
SECTION 3.01 Notices to Trustee............................................................. 28
SECTION 3.02 Selection of Securities To Be Redeemed......................................... 28
SECTION 3.03 Notice of Redemption........................................................... 28
SECTION 3.04 Effect of Notice of Redemption................................................. 29
SECTION 3.05 Deposit of Redemption Price.................................................... 29
SECTION 3.06 Securities Redeemed in Part.................................................... 29
ARTICLE FOUR COVENANTS........................................................................... 29
SECTION 4.01 Payment of Securities.......................................................... 29
SECTION 4.02 Maintenance of Office or Agency................................................ 30
SECTION 4.03 Limitation on Transactions with Affiliates..................................... 30
SECTION 4.04 Limitation on Incurrence of Indebtedness....................................... 31
SECTION 4.05 Limitation on Certain Asset Dispositions....................................... 33
SECTION 4.06 Limitation on Restricted Payments.............................................. 34
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TABLE OF CONTENTS
(continued)
Page
SECTION 4.07. Corporate Existence.............................................................. 37
SECTION 4.08. Payment of Taxes and Other Claims................................................ 37
SECTION 4.09. Notice of Defaults............................................................... 37
SECTION 4.10. Maintenance of Properties........................................................ 37
SECTION 4.11. Compliance Certificate........................................................... 38
SECTION 4.12. Provision of Financial Information............................................... 38
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.......................................... 38
SECTION 4.14. Change of Control................................................................ 38
SECTION 4.15. Limitation on Layered Debt....................................................... 39
SECTION 4.16. Limitation on Restrictions Affecting Restricted Subsidiaries..................... 39
SECTION 4.17. Limitation on Liens.............................................................. 40
SECTION 4.18. Subsidiary Guarantees............................................................ 40
SECTION 4.19. Limitation on Activities of the Company and the Restricted Subsidiaries.......... 41
SECTION 4.20. Limitation on Designations of Unrestricted Subsidiaries.......................... 41
ARTICLE FIVE MERGERS; SUCCESSOR CORPORATION........................................................ 42
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales of Assets............... 42
SECTION 5.02. Successor Corporation Substituted................................................ 42
ARTICLE SIX DEFAULT AND REMEDIES.................................................................. 43
SECTION 6.01. Events of Default................................................................ 43
SECTION 6.02. Acceleration..................................................................... 44
SECTION 6.03. Other Remedies................................................................... 44
SECTION 6.04. Waiver of Past Default........................................................... 45
SECTION 6.05. Control by Majority.............................................................. 45
SECTION 6.06. Limitation on Suits.............................................................. 45
SECTION 6.07. Rights of Holders to Receive Payment............................................. 46
SECTION 6.08. Collection Suit by Trustee....................................................... 46
SECTION 6.09. Trustee May File Proofs of Claim................................................. 46
SECTION 6.10. Priorities....................................................................... 47
SECTION 6.11. Undertaking for Costs............................................................ 47
ARTICLE SEVEN TRUSTEE............................................................................... 47
SECTION 7.01. Duties of Trustee................................................................ 47
SECTION 7.02. Rights of Trustee................................................................ 48
SECTION 7.03. Individual Rights of Trustee..................................................... 49
SECTION 7.04. Trustee's Disclaimer............................................................. 49
SECTION 7.05. Notice of Defaults............................................................... 49
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TABLE OF CONTENTS
(continued)
Page
SECTION 7.06. Reports by Trustee to Holders..................................................... 50
SECTION 7.07. Compensation and Indemnity........................................................ 50
SECTION 7.08. Replacement of Trustee............................................................ 51
SECTION 7.09. Successor Trustee by Merger, etc.................................................. 51
SECTION 7.10. Eligibility; Disqualification..................................................... 52
SECTION 7.11. Preferential Collection of Claims Against Company................................. 52
ARTICLE EIGHT SUBORDINATION OF SECURITIES............................................................ 52
SECTION 8.01. Securities Subordinated to Senior Debt............................................ 52
SECTION 8.02. No Payment on Securities in Certain Circumstances................................. 52
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.................................... 53
SECTION 8.04. Subrogation....................................................................... 54
SECTION 8.05. Obligations of Company Unconditional.............................................. 54
SECTION 8.06. Notice to Trustee................................................................. 55
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.................... 55
SECTION 8.08. Trustee's Relation to Senior Debt................................................. 55
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders
of Senior Debt.................................................................... 56
SECTION 8.10. Securityholders Authorize Trustee To Effectuate Subordination of Securities....... 56
SECTION 8.11. This Article Not to Prevent Events of Default..................................... 56
SECTION 8.12. Trustee's Compensation Not Prejudiced............................................. 56
SECTION 8.13. No Waiver of Subordination Provisions............................................. 56
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust for
Securityholders; Payments May Be Paid Prior to Dissolution........................ 57
ARTICLE NINE DISCHARGE OF INDENTURE................................................................. 57
SECTION 9.01. Termination of Company's Obligations.............................................. 57
SECTION 9.02. Application of Trust Money........................................................ 58
SECTION 9.03. Repayment to Company.............................................................. 58
SECTION 9.04. Reinstatement..................................................................... 59
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................................... 59
SECTION 10.01. Without Consent of Holders........................................................ 59
SECTION 10.02. With Consent of Holders........................................................... 60
SECTION 10.03. Compliance with Trust Indenture Act............................................... 61
SECTION 10.04. Revocation and Effect of Consents................................................. 61
SECTION 10.05. Notation on or Exchange of Securities............................................. 62
SECTION 10.06. Trustee To Sign Amendments, etc................................................... 62
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TABLE OF CONTENTS
(continued)
Page
ARTICLE ELEVEN GUARANTEE............................................................................. 62
SECTION 11.01. Unconditional Guarantee.......................................................... 62
SECTION 11.02. Severability..................................................................... 63
SECTION 11.03. Release of a Guarantor........................................................... 63
SECTION 11.04. Limitation of Guarantor's Liability.............................................. 63
SECTION 11.05. Contribution..................................................................... 64
SECTION 11.06. Execution of Guarantee........................................................... 64
SECTION 11.07. Subordination of Subrogation and Other Rights.................................... 64
ARTICLE TWELVE SUBORDINATION OF GUARANTEE............................................................ 64
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt of Guarantor................... 64
SECTION 12.02. No Payment on Guarantees in Certain Circumstances................................ 65
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc................................... 65
SECTION 12.04. Subrogation...................................................................... 66
SECTION 12.05. Obligations of Guarantors Unconditional.......................................... 67
SECTION 12.06. Notice to Trustee................................................................ 67
SECTION 12.07. Reliance on Judicial Order or Certificate of Liquidating Agent................... 68
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors.................................. 68
SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or
Holders of Senior Debt of Guarantors............................................. 68
SECTION 12.10. Securityholders Authorize Trustee to Effectuate Subordination of Guarantee....... 68
SECTION 12.11. This Article Not to Prevent Events of Default.................................... 69
SECTION 12.12. Trustee's Compensation Not Prejudiced............................................ 69
SECTION 12.13. No Waiver of Guarantee Subordination Provisions.................................. 69
SECTION 12.14. Payments May Be Paid Prior to Dissolution........................................ 69
ARTICLE THIRTEEN MISCELLANEOUS............................................................................. 69
SECTION 13.01. Trust Indenture Act Controls..................................................... 69
SECTION 13.02. Notices.......................................................................... 70
SECTION 13.03. Communications by Holders with Other Holders..................................... 71
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............................... 71
SECTION 13.05. Statements Required in Certificate or Opinion.................................... 71
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar........................................ 72
SECTION 13.07. Governing Law.................................................................... 72
SECTION 13.08. No Recourse Against Others....................................................... 72
SECTION 13.09. Successors....................................................................... 72
SECTION 13.10. Counterpart Originals............................................................ 72
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TABLE OF CONTENTS
(continued)
Page
SECTION 13.11. Severability..................................................................... 72
SECTION 13.12. No Adverse Interpretation of Other Agreements.................................... 72
SECTION 13.13. Legal Holidays................................................................... 72
EXHIBIT A - Form of Security A-1
EXHIBIT B - Form of Certificate of Transfer B-1
EXHIBIT C - Form of Certificate of Exchange C-1
__________________
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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INDENTURE dated as of November 14, 2001, among TRITON PCS, INC., a
Delaware corporation (the "Company"), the Guarantors party hereto and THE BANK
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OF NEW YORK, as trustee (the "Trustee").
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Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Senior Subordinated Notes due 2011:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Acquired Indebtedness" means, with respect to any Person, Indebtedness
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of such Person (i) existing at the time such Person becomes a Restricted
Subsidiary or (ii) assumed in connection with the acquisition of assets from
another Person, including Indebtedness Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Additional Interest" has the meaning set forth in the Registration
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Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For purposes of this definition, "control"
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when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
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"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Annualized Pro Forma Consolidated Operating Cash Flow" means
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Consolidated Cash Flow for the latest two full fiscal quarters for which
consolidated financial statements of the Company are available multiplied by
two. For purposes of calculating "Consolidated Cash Flow" for any period for
purposes of this definition only, (i) any Subsidiary of the Company that is a
Restricted Subsidiary on the date of the transaction giving rise to the need to
calculate "Annualized Pro Forma Consolidated Operating Cash Flow" (the
"Transaction Date") shall be deemed to have been a Restricted Subsidiary at all
times during such period and (ii) any Subsidiary of the Company that is not a
Restricted Subsidiary on the Transaction Date shall be deemed not to have been a
Restricted Subsidiary at any time during such period. In addition to and without
limitation of the foregoing, for purposes of this definition only, "Consolidated
Cash Flow" shall be calculated after giving effect on a pro forma basis for the
applicable period to, without duplication, any Asset Dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Company or one of the
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness) occurring during the period
commencing on the first day of such two fiscal quarter period to and including
the Transaction Date (the "Reference Period"), as if such Asset Sale or Asset
Acquisition occurred on the first day of the Reference Period.
"Applicable Procedures" means, with respect to any transfer or exchange
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of interests in a Global Security, the rules and procedures of DTC, Euroclear
and Clearstream Banking, S.A. ("Clearstream") that apply to such transfer or
exchange.
"Asset Acquisition" means (i) any purchase or other acquisition (by
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means of transfer of cash or other property to others or payment for property or
services for the account or use of others, or otherwise) of Equity
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Interests of any Person by the Company or any Restricted Subsidiary, in either
case, pursuant to which such Person shall become a Restricted Subsidiary or
shall be merged with or into the Company or any Restricted Subsidiary or (ii)
any acquisition by the Company or any Restricted Subsidiary of the property or
assets of any Person that constitute all or substantially all of an operating
unit or line of business of such Person.
"Asset Disposition" means any sale, transfer or other disposition
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(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Subsidiary of the Company
(other than directors' qualifying shares), (ii) any FCC license for the
provision of wireless telecommunications services held by the Company or any
Restricted Subsidiary (whether by sale of Capital Stock or otherwise) or (iii)
property or assets of the Company or any Subsidiary of the Company; provided,
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however, that an Asset Disposition shall not include (a) any sale, transfer or
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other disposition of shares of Capital Stock, property or assets by a Restricted
Subsidiary to the Company or to any other Restricted Subsidiary or by the
Company to any Restricted Subsidiary, (b) any sale, transfer or other
disposition of defaulted receivables for collection or any sale, transfer or
other disposition of property or assets in the ordinary course of business, (c)
any sale, transfer or other disposition that does not (together with all related
sales, transfers or dispositions) involve aggregate consideration in excess of
$5.0 million, (d) the sale, lease, conveyance or disposition or other transfer
of all or substantially all of the assets of the Company as permitted under
Article Five or (e) any disposition that constitutes a Change of Control.
"Average Life" means, as of the date of determination, with respect to
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any Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or liquidation
value payments of such Indebtedness or Preferred Stock, respectively, and the
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code.
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"Board" of any Person means the board of directors, management
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committee or other governing body of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday which is not a day on which banking institutions in The City of New York,
New York are authorized or obligated by law or executive order to close.
"Capital Lease Obligations" of any Person means the obligations to pay
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rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof 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,
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rights to purchase, warrants, options participations or other equivalents of or
interests in (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited of
such Person.
"Cash Equivalents" means (i) direct obligations of, or obligations the
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principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof; (ii)
investments in commercial paper maturing within 365 days
-3-
from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from Standard & Poor's or from Xxxxx'x
Investors Service; (iii) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 365 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not
less than $500.0 million; (iv) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (i) of this
definition and entered into with a financial institution satisfying the criteria
described in clause (iii) of this definition; and (v) money market funds
substantially all of whose assets comprise securities of the type described in
clauses (i) through (iii) of this definition.
"Change of Control" means the occurrence of one or more of the
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following events: (i) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) other than a Permitted Holder or Permitted
Holders or a person or group controlled by a Permitted Holder or Permitted
Holders is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all such securities that such person has the right to
acquire within one year, upon the happening of an event or otherwise) directly
or indirectly, of (A) securities of Triton PCS Holdings, Inc. representing 50%
or more of the combined voting power of Triton PCS Holdings, Inc.'s then
outstanding Voting Stock, or (B) securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding Voting
Stock; (ii) the following individuals cease for any reason to constitute more
than a majority of the number of directors then serving on the Board of Triton
PCS Holdings, Inc. or the Company: individuals who, on the Issue Date,
constitute the Board and any new director (other than a director whose initial
assumption of the office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of Triton PCS Holdings, Inc. or the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved by the vote of at least two-thirds (2/3) of the
directors then still in office or whose appointment, election or nomination was
previously so approved or recommended; or (iii) the shareholders of Triton PCS
Holdings, Inc. or of the Company shall approve any Plan of Liquidation (whether
or not otherwise in compliance with the provisions of this Indenture). For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
"Common Stock" of any Person means Capital Stock of such Person that
------------
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Commission" means the Securities and Exchange Commission.
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"Consolidated Cash Flow" of the Company means for any period
----------------------
Consolidated Net Income for such period (x) increased (to the extent
Consolidated Net Income for such period has been reduced thereby) by the sum of
(without duplication) (i) Consolidated Interest Expense of the Company for such
period, plus (ii) Consolidated Income Tax Expense of the Company for such
period, plus (iii) the consolidated depreciation and amortization expense of the
Company and its Restricted Subsidiaries for such period, plus (iv) any other
non-cash charges of the Company and its Restricted Subsidiaries for such period
except for any non-cash charges that represent accruals of, or reserves for,
cash disbursements to be made in any future accounting period and (y) decreased
(to the extent Consolidated Net Income for such period has been increased
thereby) by any non-cash gains from Asset Dispositions.
-4-
"Consolidated Income Tax Expense" means for any period the consolidated
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provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means for any period, without
-----------------------------
duplication, (a) the consolidated interest expense included in a consolidated
income statement (without deduction of interest or finance charge income) of the
Company and its Restricted Subsidiaries for such period calculated on a
consolidated basis in accordance with GAAP (including, without limitation, (i)
any amortization of debt discount, (ii) the net costs under interest rate
agreements, (iii) all capitalized interest, (iv) the interest portion of any
deferred payment obligation and (v) all amortization of any premiums, fees and
expenses payable in connection with the Incurrence of any Indebtedness, plus (b)
the interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" means for any period the consolidated net
-----------------------
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided, however,
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that there shall be excluded therefrom (a) the net income (or loss) of any
Person acquired by the Company or a Restricted Subsidiary in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (b) the net income (but not loss) of any Restricted Subsidiary
which is subject to restrictions which prevent or limit the payment of dividends
or the making of distributions to the Company to the extent of such restrictions
(regardless of any waiver thereof), (c) the net income of any Person that is not
a Restricted Subsidiary, except to the extent of the amount of dividends or
other distributions representing such Person's proportionate share of the
Company's net income for such period actually paid in cash to the Company by
such other Person during such period, (d) gains or losses (other than for
purposes of calculating Consolidated Net Income under Section 4.06(a)(3)) on
Asset Dispositions by the Company or its Restricted Subsidiaries, (e) all
extraordinary gains (but not, other than for purposes of calculating
Consolidated Net Income under Section 4.06(a)(3), losses) determined in
accordance with GAAP and (f) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any earnings
(or losses) of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Credit Agreement" means the amended and restated credit facility dated
----------------
as of September 14, 2000 among the Company, certain domestic subsidiaries of the
Company, the agent and certain banks referred to therein, as such agreement is
amended and restated through the Issue Date and from time to time thereafter.
"Default" means any event that is, or after notice or lapse of time or
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both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as any Indebtedness under
----------------------
one or more Senior Credit Facilities is outstanding or any lender has any
commitment to extend credit to the Company thereunder, the Senior Debt incurred
under any such Senior Credit Facility and (ii) so long as outstanding, any other
Senior Debt which has at the time of initial issuance an aggregate outstanding
principal amount in excess of $25.0 million which has been so designated as
Designated Senior Debt by the Board of the Company at the time of initial
issuance in a resolution delivered to the Trustee.
"Designation" has the meaning set forth in Section 4.20.
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"Designation Amount" has the meaning set forth in Section 4.20.
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"Disinterested Director" means a member of the Board who does not have
----------------------
any material direct or indirect financial interest in or with respect to the
transaction being considered.
-5-
"Disqualified Stock" of any Person means any Capital Stock of such
------------------
Person 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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes.
"DTC" means The Depository Trust Company or its successors.
---
"Equipment Subsidiary" means Triton PCS Equipment Company, L.L.C., a
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Delaware limited liability company.
"Equity Offering" means any public or private sale of Qualified Stock
---------------
made on a primary basis by the Company, Triton PCS Holdings, Inc. or a special
purpose corporation, including through the issuance or sale of Qualified Stock
to one or more Strategic Equity Investors; provided that the proceeds from such
issuance or sale of any Qualified Stock sold by Triton PCS Holdings, Inc. or the
special purpose corporation, as the case may be, will be required, prior to any
redemption of Notes prior to February 1, 2004, to be contributed as equity in
exchange for Qualified Stock to, or to be used to purchase Qualified Stock in,
the Company.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
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Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated by the Commission thereunder.
"Exchange Registration Statement" has the meaning set forth in the
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Registration Rights Agreement.
"Exchange Securities" means the 8 3/4% Senior Subordinated Notes due
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2011 to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement, or, with respect to the Initial Global Securities
issued under this Indenture subsequent to the Issue Date pursuant to Section
2.02, a registration rights agreement substantially identical to the
Registration Rights Agreement.
"Excluded Cash Proceeds" means the first $122.0 million of net cash
----------------------
proceeds received by the Company prior to January 19, 2001 from capital
contributions in respect of Qualified Stock of the Company or from the issue or
sale (other than to a Restricted Subsidiary) of Qualified Stock of the Company.
"Fair Market Value" means, with respect to any asset or property, the
-----------------
price that could be negotiated in an arm's-length transaction, for cash, between
a willing seller and a willing buyer, neither of whom is under pressure or
compulsion to complete the transaction. Unless otherwise specified in this
Indenture, Fair Market Value shall be determined by the Board acting in good
faith.
"GAAP" means generally accepted accounting principles, consistently
----
applied, as in effect from time to time in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States.
"Guarantee" means the guarantee of the Notes by each Guarantor under
---------
this Indenture.
"Guarantor" means (i) each Restricted Subsidiary that, on the Issue
---------
Date, is a direct or indirect obligor under, or in respect, of one or more of
the Senior Credit Facilities and (ii) each Restricted Subsidiary that
-6-
pursuant to the terms of this Indenture executes a supplement to this Indenture
as a Guarantor, in each case, until such Restricted Subsidiary is released from
its Guarantee.
"Holder" or "Securityholder" means the Person in whose name a Security
------ -------------
is registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation of
-----
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
---------- -------- ---------
correlative to the foregoing). Indebtedness of any Person or any of its
Restricted Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary (or is merged into or consolidates with the Company or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Company or any Restricted Subsidiary),
shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with the Company or any Restricted
Subsidiary.
"Indebtedness" means (without duplication), with respect to any Person,
------------
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not overdue or
which are being contested in good faith), (v) every Capital Lease Obligation of
such Person, (vi) every net obligation under interest rate swap or similar
agreements of such Person and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise. Indebtedness shall include the liquidation preference and any
mandatory redemption payment obligations in respect of any Disqualified Stock of
the Company and any Restricted Subsidiary, and any Preferred Stock of a
Subsidiary of the Company. Indebtedness shall never be calculated taking into
account any cash and cash equivalents held by such Person. Indebtedness shall
not include obligations arising from agreements of the Company or a Restricted
Subsidiary to provide for indemnification, adjustment of purchase price,
earn-out, or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business or assets of a Restricted
Subsidiary. The amount of any Indebtedness outstanding as of any date shall be
(i) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, (ii) the principal amount thereof, in the case of any
Indebtedness other than Indebtedness issued with original issue discount, and
(iii) the greater of the maximum repurchase or redemption price or liquidation
preference thereof, in the case of any Disqualified Stock or Preferred Stock.
"Indenture" means this Indenture as amended or supplemented from time
---------
to time in accordance with its terms.
"Initial Cash Equity Investors" means each of CB Capital Investors,
-----------------------------
X.X. Xxxxxx Investment Corporation, Sixty Wall Street SBIC Fund, L.P., Private
Equity Investors III, L.P., Equity-Linked Investors-II and Toronto Dominion
Capital (USA), Inc.
-7-
"Initial Global Securities" means the Regulation S Global Security and
-------------------------
the 144A Global Security, each of which is issued on the Issue Date and contains
a Securities Act Legend.
"Initial Securities" means the 8 3/4% Senior Subordinated Notes due
------------------
2011 issued under this Indenture on the Issue Date, including the Initial Global
Securities.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D promulgated under the Securities Act.
"interest" means, with respect to the Notes, the sum of any cash
--------
interest and any Additional Interest on the Notes.
"Interest Payment Date" has the meaning given to such term in the
---------------------
Securities.
"Investment" by any Person means any direct or indirect loan, advance,
----------
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Indebtedness issued by, any other Person.
"Issue Date" means November 14, 2001, the original issue date of the
----------
Securities initially issued hereunder.
"License Subsidiary" means Triton PCS License Company, L.L.C., a
------------------
Delaware limited liability company.
"Lien" means, with respect to any property or assets, any mortgage or
----
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, (a) any
-------------------
Restricted Subsidiary that, together with its Subsidiaries that constitute
Restricted Subsidiaries (i) for the most recent fiscal year of the Company
accounted for more than 10.0% of the consolidated revenues of the Company and
the Restricted Subsidiaries or (ii) as of the end of such fiscal year, owned
more than 10.0% of the consolidated assets of the Company and the Restricted
Subsidiaries, all as set forth on the consolidated financial statements of the
Company and the Restricted Subsidiaries for such year prepared in conformity
with GAAP, and (b) any Restricted Subsidiary which, when aggregated with all
other Restricted Subsidiaries that are not otherwise Material Subsidiaries and
as to which any event described in clause (h) or (i) of Section 6.01 has
occurred, would constitute a Material Subsidiary under clause (a) of this
definition.
"Net Available Proceeds" from any Asset Disposition by any Person means
----------------------
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquirer of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred and all federal, state, foreign and local taxes required to be accrued
as a liability as a consequence of such Asset Disposition, (ii) all payments
made by such Person or any of its Restricted
-8-
Subsidiaries on any Indebtedness which is secured by such assets in accordance
with the terms of any Lien upon or with respect to such assets or which must by
the terms of such Lien, 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 payments made with respect to liabilities associated with
the assets which are the subject of the Asset Disposition, including, without
limitation, trade payables and other accrued liabilities, (iv) appropriate
amounts to be provided by such Person or any Restricted Subsidiary thereof, as
the case may be, as a reserve in accordance with GAAP against any liabilities
associated with such assets and retained by such Person or any Restricted
Subsidiary thereof, as the case may be, after such Asset Disposition, including,
without limitation, liabilities under any indemnification obligations and
severance and other employee termination costs associated with such Asset
Disposition, until such time as such amounts are no longer reserved or such
reserve is no longer necessary (at which time any remaining amounts will become
Net Available Proceeds to be allocated in accordance with the provisions of
clause (iii) of Section 4.05) and (v) all distributions and other payments made
to minority interest holders in Restricted Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition.
"Net Investment" means the excess of (i) the aggregate amount of all
--------------
Investments made in any Unrestricted Subsidiary or joint venture by the Company
or any Restricted Subsidiary on or after April 29, 1998 (in the case of an
Investment made other than in cash, the amount shall be the Fair Market Value of
such Investment as determined in good faith by the Board of the Company or such
Restricted Subsidiary) over (ii) the aggregate amount returned in cash on or
with respect to such Investments whether through interest payments, principal
payments, dividends or other distributions or payments; provided, however, that
-------- -------
such payments or distributions shall not be (and have not been) included in
Section 4.06(a)(3)(iii); provided, further, that with respect to all Investments
-------- -------
made in any Unrestricted Subsidiary or joint venture the amounts referred to in
clause (ii) above with respect to such Investments shall not exceed the
aggregate amount of all such Investments made in such Unrestricted Subsidiary or
joint venture.
"Notes" or "Securities" means, collectively, the Initial Securities,
----- ----------
the Private Exchange Securities, if any, the Exchange Securities, the Subsequent
Securities, if any, and the Unrestricted Securities, treated as a single class
of securities, as amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to the terms of this Indenture.
"Offer to Purchase" means a written offer (the "Offer") sent by the
----------------- -----
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the register for the Securities on the date of the Offer offering
to purchase up to the aggregate principal amount of the Notes at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be not less than 30
days nor more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Notes within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
all the information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(i) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
-9-
(iii) the aggregate principal amount of the outstanding
Securities offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
----------------
(iv) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
--------------
(v) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000 principal
amount;
(vi) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(vii) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(viii) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(ix) that each Holder electing to tender all or any portion
of a Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the close
of business on the Expiration Date (such Security being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing);
(x) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent) receives,
not later than the close of business on the fifth Business Day next preceding
the Expiration Date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Securities the Holder tendered, the
certificate number of the Securities the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess of
the Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Securities having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such adjustments
as may be deemed appropriate so that only Securities in denominations of $1,000
or integral multiples thereof shall be purchased); and
(xii) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in writing, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the Security so tendered.
-10-
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
-------
the President, any Executive Vice President, any Senior Vice President, the
Chief Financial Officer, the Treasurer, or the Secretary of the Company.
"Officers' Certificate" means a certificate, signed by two Officers (at
---------------------
least one of whom shall be the Chief Financial Officer of the Company) or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Company,
complying with Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Participant" means any Person who has an account with DTC.
-----------
"Permitted Asset Swap" means any exchange of assets by the Company or a
--------------------
Restricted Subsidiary of the Company where the Company and/or its Restricted
Subsidiaries receive consideration at least 75% of which consists of (a) cash,
(b) assets that are used or useful in a Permitted Business or (c) any
combination thereof.
"Permitted Business" means (i) the delivery or distribution of
------------------
telecommunications, voice, data or video services, (ii) any business or activity
reasonably related or ancillary thereto, including, without limitation, any
business conducted by the Company or any Restricted Subsidiary on the Issue Date
and the acquisition, holding or exploitation of any license relating to the
delivery of the services described in clause (i) of this definition or (iii) any
other business or activity in which the Company and the Restricted Subsidiaries
are expressly contemplated to be engaged in pursuant to the provisions of the
certificate of incorporation and by-laws of the Company as in effect on the
Issue Date.
"Permitted Holder" means (i) each of AT&T Corporation, AT&T Wireless
----------------
Services, Inc., AT&T Wireless PCS, LLC, Chase Capital Partners, X.X. Xxxxxx
Investment Corporation, Xxxxx Capital Management Incorporated and any of their
respective Affiliates and the respective successors (by merger, consolidation,
transfer or otherwise) to all or substantially all of the respective businesses
and assets of any of the foregoing and (ii) any "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act) controlled by one
or more persons identified in clause (i) of this definition.
"Permitted Investments" means (i) Investments in Cash Equivalents; (ii)
---------------------
Investments representing Capital Stock or obligations issued to the Company or
any Restricted Subsidiary in the course of the good faith settlement of claims
against any other Person or by reason of a composition or readjustment of debt
or a reorganization of any debtor of the Company or any Restricted Subsidiary;
(iii) deposits, including interest-bearing deposits, maintained in the ordinary
course of business in banks; (iv) any Investment in any Person; provided,
--------
however, that after giving effect to any such Investment such Person is or
-------
becomes a Restricted Subsidiary or such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company; (v) trade receivables and prepaid expenses, in each case arising in the
ordinary course of business; provided, however, that such receivables and
-------- -------
prepaid expenses would be recorded as assets of such Person in accordance with
GAAP; (vi) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments of
such other Person received as payment for ordinary course of business trade
receivables; (vii) any interest rate agreements with an unaffiliated Person
otherwise permitted by clause (v) or (vi) under Section 4.04; (viii) Investments
received as consideration for an Asset Disposition in compliance with Section
4.05; (ix) loans or advances to employees of the Company or any
-11-
Restricted Subsidiary in the ordinary course of business in an aggregate amount
not to exceed $5.0 million in the aggregate at any one time outstanding; (xi)
any Investment acquired by the Company or any of its Restricted Subsidiaries as
a result of a foreclosure by the Company or any of its Restricted Subsidiaries
or in connection with the settlement of any outstanding Indebtedness or trade
payable; (xii) loans and advances to officers, directors and employees for
business-related travel expense, moving expenses and other similar expenses,
each incurred in the ordinary course of business; and (xiii) other Investments
(with each such Investment being valued as of the date made and without giving
effect to subsequent changes in value) in an aggregate amount not to exceed $7.5
million at any one time outstanding.
"Person" means any individual, corporation, limited or general
------
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
-------------------
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referent Person and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referent Person to holders of Capital Stock of the
referent Person.
"Preferred Stock" as applied to the Capital Stock of any Person means
---------------
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"principal" of any Security means principal of, and premium, if any,
---------
with respect to, such Security.
"Private Exchange Securities" has the meaning set forth in the
---------------------------
Registration Rights Agreement.
"Public Sale" means any underwritten public offering, made on a primary
-----------
basis pursuant to a registration statement filed with, and declared effective
by, the Commission in accordance with the Securities Act.
"Purchase Date" has the meaning set forth in the definition of "Offer
-------------
to Purchase."
"Qualified Institutional Buyer" or "QIB" has the meaning specified
----------------------------- ---
under Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company, Triton PCS
----------------
Holdings, Inc. or a special purpose corporation other than Disqualified Stock.
"Real Property Subsidiary" means Triton PCS Property Company, L.L.C., a
------------------------
Delaware limited liability company.
"Refinance" means refinance, renew, extend, replace or refund; and
---------
"Refinancing" and "Refinanced" have correlative meanings.
----------- ----------
"Registration Rights Agreement" means the Registration Rights Agreement
-----------------------------
dated the date hereof among the Company, the Guarantors, X.X. Xxxxxx Securities
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Inc., CIBC World Markets Corp.,
Credit Lyonnais Securities (USA) Inc., Credit Suisse First Boston Corp.,
Dresdner
-12-
Kleinwort Xxxxxxxxxxx-Grantchester, Inc., Fleet Securities, Inc., Xxxxxx Xxxxxxx
& Co. Inc., NatCity Investments, Inc., Xxxxxxx Xxxxx Barney Inc., Scotia Capital
Markets (USA) Inc., SunTrust Capital Markets, Inc. and TD Securities (USA) Inc.
"Regulation S" means Regulation S under the Securities Act.
------------
"Restricted Physical Security" means a Physical Security containing, or
----------------------------
required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company other than
---------------------
an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 4.20.
----------
"Rule 144" means Rule 144 under the Securities Act.
--------
"Rule 144A" means Rule 144A under the Securities Act.
---------
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facilities" means upon the initial issuance of the
------------------------
Notes, the Credit Agreement and at any time thereafter may include the Credit
Agreement and/or any other agreement providing for loans by banks, trust
companies and/or other institutions principally engaged in the business of
lending money to businesses under a credit facility, loan agreement or similar
agreement.
"Senior Debt" means, with respect to any Person at any date, (i) in the
-----------
case of the Company or the Guarantors, all Indebtedness and other payment
obligations under one or more Senior Credit Facilities, including principal,
premium, if any, and interest on such Indebtedness and all other amounts due on
or in connection with such Indebtedness, including all charges, fees, expenses,
reimbursement obligations, guarantees and indemnity payments, (ii) all other
Indebtedness of such Person for borrowed money or under Vendor Credit
Arrangements, including principal, premium, if any, and interest on such
Indebtedness, unless the instrument under which such Indebtedness for borrowed
money is created, incurred, assumed or guaranteed expressly provides that such
Indebtedness for borrowed money is not senior or superior in right of payment to
the Securities or the Guarantees, as the case may be, and all Refinancings or
modifications or amendments thereof and (iii) all interest on any Indebtedness
referred to in clauses (i) and (ii) accruing during the pendency of any
bankruptcy or insolvency proceeding, whether or not allowed thereunder.
Notwithstanding the foregoing, Senior Debt shall not include (a) Indebtedness
that is pursuant to its terms or any agreement or instrument relating thereto or
by operation of law subordinated or junior in right of payment or otherwise to
any other Indebtedness of such Person; provided, however, that no Indebtedness
-------- -------
shall be deemed to be subordinate or junior in right of payment or otherwise to
any other Indebtedness of a Person solely by reason of such other Indebtedness
being secured and such Indebtedness not being secured, (b) the Securities, (c)
any Indebtedness of such Person to any of its Subsidiaries, (d) Indebtedness
Incurred in violation of Section 4.04, (e) any Indebtedness which, when incurred
and without respect to any election under Section 1111(b) of the Bankruptcy
Code, is without recourse to the Company, (f) the 11% Senior Subordinated
Discount Notes due 2008 and the related guarantees, which rank pari passu with
the Securities, and (g) the 9 3/8% Senior Subordinated Notes due 2011 and the
related guarantees, which rank pari passu with the Securities.
"Shelf Registration Statement" has the meaning set forth in the
----------------------------
Registration Rights Agreement.
-13-
"Standard & Poor's" means Standard & Poor's Ratings Service, a division
-----------------
of the McGraw Hill Companies, Inc.
"Strategic Equity Investor" means each of CB Capital Investors, J.P.
-------------------------
Xxxxxx Investment Corporation, Sixty Wall Street SBIC Fund, L.P., Private Equity
Investors III, L.P., Equity-Linked Investors-II and Toronto Dominion Capital
(USA), Inc., any Affiliate thereof or any other Person engaged in a Permitted
Business whose Total Equity Market Capitalization exceeds $500.0 million.
"Subordinated Indebtedness" means any Indebtedness of the Company or
-------------------------
any Guarantor (whether outstanding on the date hereof or hereafter Incurred)
which is by its terms expressly subordinate or junior in right of payment to the
Securities or the Guarantee of such Guarantor, as the case may be.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
----------
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and voting power relating to the
policies, management and affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
---
77aaa-77bbbb), as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Total Consolidated Indebtedness" means at any date of determination,
-------------------------------
an amount equal to (i) the accreted value of all Indebtedness, in the case of
any Indebtedness issued with original issue discount, plus (ii) the principal
amount of all Indebtedness, in the case of any other Indebtedness, of the
Company and the Restricted Subsidiaries outstanding as of the date of
determination.
"Total Equity Market Capitalization" of any Person means, as of any day
----------------------------------
of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) multiplied by (B) the
average closing price of such common stock listed on a national securities
exchange or the Nasdaq National Market System over the 20 consecutive business
days immediately preceding such day, plus (ii) the liquidation value of any
outstanding shares of preferred stock of such Person on such day.
"Total Invested Capital" means, at any time of determination, the sum
----------------------
of, without duplication, (i) the total amount of equity contributed to the
Company as of the Issue Date (as set forth on the combined balance sheet of the
Company), plus (ii) irrevocable binding commitments to purchase Capital Stock
(other than Disqualified Stock) existing as of the Issue Date, plus (iii) the
aggregate net cash proceeds received by the Company from capital contributions
or the issuance or sale of Capital Stock (other than Disqualified Stock but
including Capital Stock issued upon the conversion of convertible Indebtedness
or from the exercise of options, warrants or rights to purchase Capital Stock
(other than Disqualified Stock)) subsequent to the Issue Date, other than to a
Restricted Subsidiary; provided, however, such aggregate net cash proceeds
-------- -------
received pursuant to this clause (iii) shall exclude any amounts included as
commitments to purchase Capital Stock in the preceding clause (ii), plus (iv)
the aggregate net cash proceeds received by the Company or any Restricted
Subsidiary from the sale, disposition or repayment of any Investment made after
the Issue Date and constituting a Restricted Payment in an amount equal to the
lesser of (a) the return of capital with respect to such Investment and (b) the
initial amount of such Investment, in either case, less the cost of the
disposition of such Investment, plus (v) an amount equal to the consolidated Net
Investment on the date the Company and/or any of the Restricted Subsidiaries in
any Subsidiary that has been designated as an Unrestricted Subsidiary after the
Issue Date upon
-14-
its redesignation as a Restricted Subsidiary in accordance with Section 4.20,
plus (vi) Total Consolidated Indebtedness minus (vii) the aggregate amount of
all Restricted Payments (including any Designation Amount, but other than a
Restricted Payment of the type referred to in Section 4.06(b)(iii)(b) declared
or made on or after the Issue Date.
"Triton PCS Holdings, Inc." means Triton PCS Holdings, Inc., a Delaware
------------------------
corporation, that as of the Issue Date owns all of the issued and outstanding
Capital Stock of the Company.
"Trust Officer" means any officer within the corporate trust department
-------------
(or any successor group) of the Trustee including any vice president, assistant
vice president, assistant treasurer or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Global Securities" means one or more Global Securities
------------------------------
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
--------------------------------
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
-----------------------
required to bear the Securities Act Legend including, without limitation, the
Exchange Securities.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other
-----------------------
than the License Subsidiary, the Equipment Subsidiary or the Real Property
Subsidiary) designated after the Issue Date as such pursuant to and in
compliance with Section 4.20. Any such designation may be revoked by a
resolution of the Board of the Company delivered to the applicable Trustee,
subject to the provisions of Section 4.20.
"Vendor Credit Arrangement" means any Indebtedness (including, without
-------------------------
limitation, Indebtedness under any credit facility entered into with any vendor
or supplier or any financial institution acting on behalf of such vendor or
supplier); provided that the net proceeds of such Indebtedness are utilized
--------
solely for the purpose of financing the cost (including, without limitation, the
cost of design, development, site acquisition, construction, integration,
handset manufacture or acquisition or microwave relocation) of assets used or
usable in a Permitted Business (including, without limitation, through the
acquisition of Capital Stock of an entity engaged in a Permitted Business).
"Voting Stock" of any Person means the Capital Stock of such Person
------------
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all of the
-----------------------
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by the Company and/or
by one or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
-----------------
Term Defined in Section
-15-
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Corporate Trust Office" 4.02
"Custodian" 6.01
"Event of Default" 6.01
"Global Security" 2.01(a)
"Guarantor Blockage Period" 12.02(a)
"Guarantor Payment Blockage Notice" 12.02(a)
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Payment Blockage Notice" 8.02(a)
"Payment Blockage Period" 8.02(a)
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Securities Act Legend" 2.06(f)
"Subsequent Securities" 2.02
"United States Government Obligation" 9.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
----------
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Holder or Securityholder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company or any other
-------
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP;
-16-
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) Section and Article references are to sections and articles of this
Indenture;
(6) provisions apply to successive events and transactions; and
(7) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
(a) Global Securities. Securities offered and sold to QIBs in reliance on
-----------------
Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly
---------
executed by the Company and authenticated by the Trustee as hereinafter
provided. Such Security shall be referred to herein as the "144A Global
-----------
Security." Securities offered and sold in reliance on Regulation S
--------
shall be issued initially substantially in the form of Exhibit A hereto
---------
in the name of Cede & Co. as nominee of DTC, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to herein as the "Regulation S Global
-------------------
Security." Unrestricted Global Securities shall be issued initially in
--------
accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in the
name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The 144A Global
Security, Regulation S Global Security and Unrestricted Global Security
are collectively referred to herein as the "Global Securities." The
-----------------
aggregate principal amount of each of the Global Securities may from
time to time be increased or decreased by adjustments made on the
records of the Trustee as hereinafter provided.
Each Global Security shall represent such of the outstanding Securities
as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Securities from time to time endorsed
thereon and that the aggregate principal amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee or DTC, as applicable, in accordance with instructions given by the
Holder thereof as required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participants'
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Clearstream, and indirect Participants.
The Participants shall not have any rights either under this Indenture
or under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on the Global Securities
and for all other purposes. Notwithstanding the foregoing, nothing herein shall
-17-
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Participants, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System,"
"Terms and Conditions Governing Use of Euroclear," the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream, and
successors provisions, shall be applicable to interests in the Regulation S
Global Security that are held by the Participants through Euroclear or
Clearstream.
(b) Physical Securities. Securities offered and sold to Institutional
Accredited Investors who are not also QIBs may be issued substantially
in the form of Exhibit A hereto, in certificated form and issued in the
names of the purchasers thereof (or their nominees), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Securities in certificated form shall be referred to herein as the
"Physical Securities."
(c) Securities. The provisions of the form of Securities contained in
----------
Exhibit A hereto are incorporated herein by reference. The Securities
---------
and the Trustee's Certificates of Authentication shall be substantially
in the form of Exhibit A hereto. The Securities may have notations,
---------
legends or endorsements required by law, stock exchange rule or usage.
The Company shall approve the form of the Securities and any notation,
legend or endorsement (including notations relating to the Guarantees)
on them. If required, the Securities shall bear the appropriate legend
regarding original issue discount for federal income tax purposes. Each
Security shall be dated the date of its authentication. The terms and
provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers of the Company shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Securities for original
issue in the aggregate principal amount of $400.0 million, (ii) Subsequent
Securities in accordance with this paragraph, (iii) Private Exchange Securities
from time to time only in exchange for a like principal amount of Initial
Securities or Subsequent Securities and (iv) Unrestricted Securities from time
to time only in exchange for a like principal amount of Initial Securities or
Subsequent Securities, in each case upon a written order signed by an Officer of
the Company. The order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated. The order shall also provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate principal
amount of the Securities outstanding under this Indenture at any time shall
consist of (i) $400.0 million aggregate principal amount of Securities issued on
the Issue Date and (ii) one or more additional series of Securities issued
subsequent to the Issue Date (the "Subsequent Securities"). The Subsequent
---------------------
Securities may be issued from time to time and only in compliance with the
provisions of
-18-
Section 4.04 and the other provisions of this Indenture. The Securities shall be
issued only in registered form, without coupons and only in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Securities may be presented for payment ("Paying Agent").
------------
The Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee in
writing of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with the provisions of
Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company shall give written notice to the Trustee in the event that
the Company decides to act as Registrar. None of the Company, its Subsidiaries
or any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent to agree in writing to hold
in trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities
(whether such money has been paid to it by the Company or any other obligor on
the Securities), and the Company and the Paying Agent shall each notify the
Trustee in writing of any default by the Company (or any other obligor on the
Securities) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon making such payment the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
----------------------
(a) Transfer and Exchange of Global Securities. Transfer of the Global
------------------------------------------
Securities shall be by delivery. Global Securities will be exchanged by
the Company for Physical Securities only (i) if DTC notifies the
Company that it is unwilling or unable to continue to act as depositary
with respect to the Global Securities or ceases to be a clearing agency
registered under the Exchange Act and, in either case, a successor
depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 120 days, (ii) at any time if the
Company in its sole discretion determines that the Global Securities
(in whole but not in part) should be exchanged for Physical Securities
or (iii) if the
-19-
owner of an interest in the Global Securities requests such Physical
Securities, following an Event of Default under this Indenture, in a
writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee in writing, and the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly and
direct DTC to make a corresponding reduction in its book-entry system. The
Company shall execute and the Trustee shall authenticate and make available for
delivery to the Person designated in the instructions a Physical Security in the
appropriate principal amount. The Trustee shall make available for delivery such
Physical Securities to the Persons in whose names such Securities are so
registered. Physical Securities issued in exchange for an Initial Global
Security pursuant to this Section 2.06(a) shall bear the Securities Act Legend
and shall be subject to all restrictions on transfer contained therein. Global
Securities may also be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. Every Security authenticated and made available for
delivery in exchange for, or in lieu of, a Global Security or any portion
thereof, pursuant to Section 2.07 or 2.10, shall be authenticated and made
available for delivery in the form of, and shall be, a Global Security. A Global
Security may not be exchanged for another Security other than as provided in
this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities. The transfer
-------------------------------------------------------
and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of
DTC therefor. Interests in Initial Global Securities shall be subject
to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. The Trustee shall have no
obligation to ascertain DTC's compliance with any such restrictions on
transfer. Transfers of interests in Global Securities shall also
require compliance with subparagraph (i) below, as well as one or more
of the other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Securities. In
-------------------------------------------------------------
connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the
same Global Security), the transferor of such interest must deliver to
the Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC
to credit or cause to be credited an interest in the specified Global
Security in an amount equal to the interest to be transferred or
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase and (3) instructions given by the Holder
of the Global Security to effect the transfer referred to in (1) and
(2) above.
(ii) Transfer of Interests in the Same Initial Global Security. Interests in
---------------------------------------------------------
any Initial Global Security may be transferred to Persons who take
delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in
Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Security. Interests in
--------------------------------------------------------
any Initial Global Security may be transferred to Persons who take
delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an interest in the
144A Global Security, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item 1
---------
thereof; or
(B) if the transferee will take delivery in the form of an interest in the
Regulation S Global Security, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
---------
certifications in item 2 thereof.
-20-
(iv) Transfer and Exchange of Interests in Initial Global Security for
Interests in an Unrestricted Global Security. Interests in any Initial
Global Security may be exchanged by the holder thereof for an interest
in the Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of an interest in the Unrestricted
Global Security if:
(A) such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights
Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global Security
proposes to exchange it for an interest in the Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit C
---------
hereto, including the certifications in item 1(a) thereof;
(2) if the holder of such an interest in an Initial Global Security
proposes to transfer it to a Person who shall take delivery thereof in
the form of an interest in an Unrestricted Global Security, a
certificate in the form of Exhibit B hereto, including the
---------
certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an Opinion of
Counsel in form reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in Section
2.06(f) hereof are not required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
interests in the Initial Global Security transferred pursuant to paragraph (B)
above.
(v) Notation by the Trustee of Transfer of Interests Among Global
-------------------------------------------------------------
Securities. Upon satisfaction of the requirements for transfer of
----------
interests in Global Securities pursuant to clauses (iii) or (iv) above,
the Trustee, as Registrar, shall reduce or cause to be reduced the
aggregate principal amount of the relevant Global Security from which
the interests are being transferred, and increase or cause to be
increased the aggregate principal amount of the Global Security to
which the interests are being transferred, in each case, by the
principal amount so transferred and shall direct DTC to make
corresponding adjustments in its book-entry system. No transfer of
interests of a Global Security shall be effected until, and any
transferee pursuant thereto shall succeed to the rights of a holder of
such interests only when, the Registrar has made appropriate
adjustments to the applicable Global Security in accordance with this
paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a Global
Security.
(i) If any Holder of Physical Securities required to contain the Securities
Act Legend proposes to exchange such Securities for an interest in a
Global Security or to transfer such Physical Securities to a Person who
takes delivery thereof in the form of an interest in a Global Security,
then, upon receipt by the Registrar of the following documentation (all
of which may be submitted by facsimile):
-21-
(A) if the Holder of such Physical Registered Securities proposes to
exchange such Securities for an interest in an Initial Global Security,
a certificate from such Holder in the form of Exhibit C hereto,
---------
including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
---------
in item 1 thereof; or
(C) if such Physical Securities are being transferred to a Non-U.S. Person
(as defined in Regulation S) in an offshore transaction in accordance
with Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item 2
---------
thereof,
the Trustee shall cancel the Physical Securities, increase or cause to
be increased the aggregate principal amount of, in the case of clause (B) above,
the 144A Global Security, in the case of clause (C) above, the Regulation S
Global Security, and direct DTC to make a corresponding increase in its
book-entry system.
(ii) A Holder of Physical Securities required to contain the Securities Act
Legend may exchange such Securities for an interest in the Unrestricted
Global Security or transfer such Restricted Physical Securities to a
Person who takes delivery thereof in the form of an interest in the
Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights
Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) upon receipt by the Registrar of the following documentation (all of
which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to exchange such
Securities for an interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C hereto, including
---------
the certifications in item 1(b) thereof;
(2) if the Holder of such Registered Securities proposes to transfer such
Securities to a Person who shall take delivery thereof in the form of
an interest in the Unrestricted Global Security, a certificate in the
form of Exhibit B hereto, including the certifications in item 4
---------
thereof; and
(3) in each such case set forth in this paragraph (C), an Opinion of
Counsel in form reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in Section
2.06(f) hereof are not required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
-22-
(i) Transfer of a Physical Security to Another Physical Security. Following
------------------------------------------------------------
the occurrence of one or more of the events specified in Section
2.06(a), a Physical Security may be transferred to Persons who take
delivery thereof in the form of another Physical Security if the
Registrar receives the following:
(A) if the transfer is being effected pursuant to and in accordance with
Rule 144A, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item 3(a) thereof;
---------
or
(B) if the transfer is being effected pursuant to and in accordance with
Regulation S, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item 3(b)
---------
thereof.
(ii) Transfer and Exchange of Restricted Physical Securities for
-----------------------------------------------------------
Unrestricted Physical Securities. Following the occurrence of one or
--------------------------------
more of the events specified in Section 2.06(a), a Restricted Physical
Security may be exchanged by the Holder thereof for an Unrestricted
Physical Security or transferred to a Person who takes delivery thereof
in the form of an Unrestricted Physical Security if:
(A) such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights
Agreement;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement; or
(C) the Registrar receives a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item 1(c) thereof and
---------
an Opinion of Counsel in form reasonably acceptable to the Company, to
the effect that such exchange or transfer is in compliance with the
Securities Act and, that the restrictions on transfer contained herein
and in Section 2.06(f) hereof are not required in order to maintain
compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are presented
-------------------------------
by a Holder to the Registrar with a request to register the exchange of
such Physical Securities for an equal principal amount of Physical
Securities of other authorized denominations, the Registrar shall make
the exchange as requested only if the Physical Securities are endorsed
or accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such
Holder or its nominee. The Physical Securities issued in exchange for
Physical Securities shall bear the Securities Act Legend and shall be
subject to all restrictions on transfer contained herein in each case
to the same extent as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer pursuant to
-----------------------------
clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount of Securities
in excess of that to be transferred, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the
Holder of such Security, without service charge, a new Physical
Security or Securities of any authorized denomination requested by the
Holder, in an aggregate principal amount equal to the portion of the
Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as defined
--------------
in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.02, the
Trustee shall authenticate one or more Unrestricted Global Securities
in an aggregate principal amount equal to the principal amount of the
interests in the Initial Global Securities tendered for acceptance (and
not withdrawn) by persons
-23-
participating therein. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal amount of
the applicable Initial Global Securities to be reduced accordingly and
direct DTC to make a corresponding reduction in its book-entry system.
The Trustee shall cancel any Restricted Physical Certificates in
accordance with Section 2.11 hereof.
In the case that one or more of the events specified in Section 2.06(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate Unrestricted Physical Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Physical Securities tendered for acceptance by persons participating therein.
(f) Legends. Each Initial Global Security and each Restricted Physical
-------
Security shall bear the legend (the "Securities Act Legend") in
---------------------
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT OR (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend in
----------------------
substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO A NOMINEE OF DTC, OR BY ANY SUCH NOMINEE OF
DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH
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OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON 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 SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE
INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such time as
---------------------------------------------------
all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to such cancellation, if any interest in a Global Security
is exchanged for an interest in another Global Security or for Physical
Securities, the principal amount of Securities represented by such
Global Security shall be reduced accordingly and an endorsement shall
be made on such Global Security, by the Trustee to reflect such
reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Global Securities and
Physical Securities upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any stamp or transfer tax or similar governmental
charge payable in connection therewith (other than any such stamp or
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.05, 4.14 and 10.05 hereof).
(iii) All Global Securities and Physical Securities issued upon any
registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Global Securities or Physical Securities surrendered upon such
registration of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to register the
transfer of or to exchange Securities during a period beginning at the
opening of 15 Business Days before the day of any mailing of notice of
redemption of Securities under Section 3.02 and ending at the close of
business on the day of such mailing, (B) to register the transfer of or
to exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in
part or (C) to register the transfer of or to exchange a Security
between a record date and the next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of
and interest on such
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Securities and for all other purposes, and none of the Trustee, any
Agent or the Company shall be affected by notice to the contrary.
(vi) The Trustee 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
transfers of any interest in any Security (including any transfers
between or among Participants or beneficial owners of interests in any
Global Security) or Physical Security 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.
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. The Holder shall provide an
indemnity bond in an amount sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee or any Agent from any loss which any
of them may suffer if a Security is replaced. The Company and the Trustee each
may charge such Holder for its expenses in replacing such Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal of and interest on Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary or any of their respective Affiliates shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that the Trustee actually knows are so owned shall be so disregarded.
The Trustee may require an Officers' Certificate listing securities
owned by the Company, any Subsidiary or any of their respective Affiliates.
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SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace, reissue or resell Securities which the Company has redeemed, paid,
purchased on the open market or otherwise, or otherwise acquired or have been
delivered to the Trustee for cancellation. The Trustee (subject to the
record-retention requirements of the Exchange Act) may, but shall not be
required to, destroy canceled Securities.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP or ISIN Number.
--------------------
The Company in issuing the Securities may use a "CUSIP" or "ISIN"
number, and if so, such CUSIP or ISIN number shall be included in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
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such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company will promptly notify the Trustee of any change in
the CUSIP or ISIN number.
SECTION 2.14. Payments of Interest.
--------------------
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Physical Security
subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in
the payment of the interest due on such Interest Payment Date, in which
case such defaulted interest shall be paid in accordance with Section
2.12; and in the event of an exchange of a Physical Security for a
beneficial interest in any Global Security subsequent to a regular
record date or any special record date and prior to or on the related
Interest Payment Date or other payment date under Section 2.12, any
payment of the interest payable on such payment date with respect to
any such Physical Security shall be made to the Person in whose name
such Physical Security was registered on such record date.
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Payments of interest on the Global Securities will be made on
each Interest Payment Date to the Holder of the Global Security
on the record date with respect thereto; provided, however, that,
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in the event of an exchange of all or a portion of a Global
Security for a Physical Security subsequent to the regular record
date or any special record date and prior to or on the related
Interest Payment Date or other payment date under Section 2.12,
any payment of interest payable on such Interest Payment Date or
other payment date with respect to the Physical Security shall be
made to the Holder of the Global Security as of the applicable
record date.
(b) Subject to Section 4.01, interest shall be paid to DTC, with
respect to any Global Security held by DTC, on the applicable
Interest Payment Date in accordance with instructions received
from DTC at least five Business Days before the applicable
Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to paragraph
5 of the Securities at the applicable redemption price set forth thereon, it
shall notify the Trustee in writing of the redemption date and the principal
amount of Securities to be redeemed.
The Company shall give the notice provided for in this Section
3.01 at least 45 days before the redemption date (unless a shorter notice shall
be agreed to by the Trustee in writing) but not more than 60 days before the
redemption date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed, in
accordance with the rules of any national securities exchange on which the
Securities may be listed or, if the Securities are not so listed, pro rata or by
--- ----
lot or in such other manner as the Trustee shall deem appropriate and fair. The
Trustee shall make the selection from the Securities then outstanding, subject
to redemption and not previously called for redemption. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal amount of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number (subject to Section 2.13);
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(4) the name and address of the Paying Agent to which the Securities are
to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and
after the redemption date and the only remaining right of the
Holders is to receive payment of the redemption price upon surrender
to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion
thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or prior to the redemption date, the Company shall deposit with
the Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation. If the Company complies with the
provisions of this paragraph, on and after the redemption date, interest shall
cease to accrue on the Securities or the portions of the Securities called for
redemption.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of principal
or interest shall be considered paid on the date due if the Trustee or
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Paying Agent holds on that date money designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
of the Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay interest on overdue
--- -----
installments of interest at the same rate per annum borne by the Securities, to
--- -----
the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
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relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the office of the Trustee set forth in
Section 13.02 (the "Corporate Trust Office") as one such office or agency of the
Company in accordance with Section 2.03.
SECTION 4.03. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into, renew
or extend any transaction with any of their respective Affiliates or any
beneficial holder of 10% or more of any class of Capital Stock of the Company or
Triton PCS Holdings, Inc., including, without limitation, the purchase, sale,
lease or exchange of property, the rendering of any service, or the making of
any guarantee, loan, advance or Investment, either directly or indirectly,
unless the terms of such transaction are at least as favorable as the terms that
could be obtained at such time by the Company or such Restricted Subsidiary, as
the case may be, in a comparable transaction made on an arms'-length basis with
a Person that is not such an Affiliate; provided, however, that (x) in any
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transaction involving aggregate consideration in excess of $10.0 million, the
Company shall deliver an Officers' Certificate to the Trustee stating that a
majority of the Disinterested Directors of either (i) the Board of Triton PCS
Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary
of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time
of such transaction the Company is not a Subsidiary of Triton PCS Holdings,
Inc., have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained by the
Company or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arms'-length basis between unaffiliated parties and (y)
if the aggregate consideration is in excess of $25.0 million, the Company shall
also deliver to the Trustee, prior to the consummation of the transaction, the
favorable written opinion of a nationally recognized accounting, appraisal or
investment banking firm as to the fairness of the transaction to Holders, from a
financial point of view.
Notwithstanding the foregoing, the restrictions set forth in this
Section 4.03 shall not apply to (i) transactions between or among the Company
and/or any Restricted Subsidiaries, (ii) any Restricted Payment or
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Permitted Investment permitted by Section 4.06, (iii) directors' fees,
indemnification and similar arrangements, officers' indemnification, employee
stock option or employee benefit plans and employee salaries and bonuses paid or
created in the ordinary course of business, (iv) any other agreement in effect
on the Issue Date, as the same shall be amended from time to time; provided,
--------
however, that any material amendment shall be required to comply with the
-------
provisions of the preceding paragraph of this Section 4.03, (v) transactions
with AT&T Corporation, AT&T Wireless Services, Inc. and AT&T Wireless PCS LLC or
any of their affiliates (collectively, "AT&T") relating to the marketing or
----
provision of telecommunication services or related hardware, software or
equipment on terms that are no less favorable (when taken as a whole) to the
Company or such Restricted Subsidiary, as applicable, than those available from
unaffiliated third parties, (vi) transactions involving the leasing or sharing
or other use by the Company or any Restricted Subsidiary of communications
network facilities (including, without limitation, cable or fiber lines,
equipment or transmission capacity) of any Affiliate of the Company or any
beneficial holder of 10% or more of any class of Capital Stock of the Company or
Triton PCS Holdings, Inc. (such Affiliate or holder being a "Related Party") on
terms that are no less favorable (when taken as a whole) to the Company or such
Restricted Subsidiary, as applicable, than those available from such Related
Party to unaffiliated third parties, (vii) transactions involving the provision
of telecommunication services by a Related Party in the ordinary course of its
business to the Company or any Restricted Subsidiary, or by the Company or any
Restricted Subsidiary to a Related Party, on terms that are no less favorable
(when taken as a whole) to the Company or such Restricted Subsidiary, as
applicable, than those available from such Related Party to unaffiliated third
parties, (viii) any sales agency agreements pursuant to which an Affiliate has
the right to market any or all of the products or services of the Company or any
of the Restricted Subsidiaries, and (ix) customary commercial banking,
investment banking, underwriting, placement agent or financial advisory fees
paid in connection with services rendered to the Company and its subsidiaries in
the ordinary course.
SECTION 4.04. Limitation on Incurrence of Indebtedness.
----------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except:
(i) Indebtedness of the Company, if immediately after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the
net proceeds thereof (including, without limitation, the application or
use of the net proceeds therefrom to repay Indebtedness, consummate an
Asset Acquisition or make any Restricted Payment), (a) the ratio of (x)
Total Consolidated Indebtedness to (y) Annualized Pro Forma
Consolidated Operating Cash Flow would be less than (i) 7.0 to 1.0, if
the Indebtedness is to be incurred prior to July 1, 2004, or (ii) 6.0
to 1.0 if the Indebtedness is to be incurred on or after July 1, 2004,
or (b) in the case of any incurrence of Indebtedness prior to July 1,
2004 only, Total Consolidated Indebtedness would be equal to or less
than 75% of Total Invested Capital;
(ii) Indebtedness of the Company and the Restricted Subsidiaries Incurred
under one or more Senior Credit Facilities in an aggregate amount at
any one time outstanding not to exceed $750.0 million in the aggregate
for all such Senior Credit Facilities (including amounts outstanding
under the Senior Credit Facilities);
(iii) Indebtedness of the Company and its Restricted Subsidiaries outstanding
from time to time pursuant to any Vendor Credit Arrangement;
(iv) Indebtedness owed by the Company to any Restricted Subsidiary or
Indebtedness owed by a Restricted Subsidiary to the Company or another
Restricted Subsidiary; provided, however, that upon either (x) the
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transfer or other disposition by such Restricted Subsidiary or the
Company of any Indebtedness so permitted under this clause (iv) to a
Person other than the Company or another Restricted Subsidiary or (y)
the issuance (other than directors' qualifying shares), sale, transfer
or other disposition of shares of
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Capital Stock or other ownership interests (including by consolidation
or merger) of such Restricted Subsidiary to a Person other than the
Company or another such Restricted Subsidiary, the exception provided
by this clause (iv) shall no longer be applicable to such Indebtedness
and such Indebtedness shall be deemed to have been Incurred at the time
of any such issuance, sale, transfer or other disposition, as the case
may be;
(v) Indebtedness of the Company or any Restricted Subsidiary under any
interest rate agreement to the extent entered into to protect the
Company or such Restricted Subsidiary from fluctuations in interest
rates on any other Indebtedness permitted under this Indenture
(including the Notes) and not for speculative purposes;
(vi) Indebtedness Incurred to Refinance any Indebtedness Incurred under the
prior clauses (i) or (iii) above, the Notes, the Guarantees, the
Company's 11% Senior Subordinated Discount Notes due 2008, the
Company's 9 3/8% Senior Subordinated Notes due 2011 or the guarantees
of any such notes; provided, however, that (x) such Indebtedness does
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not exceed the principal amount (or accreted value, if less) of the
Indebtedness so Refinanced plus the amount of any premium required to
be paid in connection with such Refinancing pursuant to the terms of
the Indebtedness being Refinanced or the amount of any premium
reasonably determined by the issuer of such Indebtedness as necessary
to accomplish such Refinancing by means of a tender offer, exchange
offer, or privately negotiated repurchase, plus the expenses of such
issuer reasonably incurred in connection therewith and (y)(1) in the
case of any Refinancing of Indebtedness that is pari passu with the
---- -----
Notes, such Refinancing Indebtedness is made pari passu with or
---- -----
subordinate in right of payment to the Notes, and, in the case of any
Refinancing of Indebtedness that is subordinate in right of payment to
the Notes, such Refinancing Indebtedness is subordinate in right of
payment to the Notes on terms no less favorable to the Holders than
those contained in the Indebtedness being Refinanced, (2) in either
case the Refinancing Indebtedness by its terms, or by the terms of any
agreement or instrument pursuant to which such Indebtedness is issued,
does not have an Average Life that is less than the remaining Average
Life of the Indebtedness being Refinanced and (3) any Indebtedness
Incurred to Refinance any indebtedness is Incurred by the obligor on
the Indebtedness being Refinanced or by the Company;
(vii) Indebtedness of the Company under the Private Exchange Securities and
Unrestricted Securities, each of which have been issued only in
exchange for a like principal amount of the Initial Global Securities
and Indebtedness of the Guarantors under the Guarantee incurred in
accordance with this Indenture;
(viii) Capital Lease Obligations of the Company or any Restricted
Subsidiary with respect to the leasing by the Company or any Restricted
Subsidiary of tower sites and equipment that is a fixture thereto;
provided, that such Capital Lease Obligations shall not exceed $25.0
--------
million in aggregate principal amount at any time outstanding;
(ix) Indebtedness of the Company or any Restricted Subsidiary consisting of
a guarantee of Indebtedness of the Company or a Restricted Subsidiary
of the Company that was permitted to be incurred by another provision
of this Section 4.04;
(x) Indebtedness of the Company or any Restricted Subsidiary in respect of
statutory obligations, performance, surety or appeal bonds or other
obligations of a like nature incurred in the ordinary course of
business; and
(xi) Indebtedness of the Company not otherwise permitted to be Incurred
pursuant to clauses (i) through (x) above which, together with any
other outstanding Indebtedness Incurred pursuant to this clause (xi),
has an aggregate principal amount not in excess of $75.0 million at any
time outstanding.
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Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary or that is secured by a Lien on an asset acquired by the
Company or a Restricted Subsidiary (whether or not such Indebtedness is assumed
by the acquiring Person) shall be deemed incurred at the time the Person becomes
a Restricted Subsidiary or at the time of the asset acquisition, as the case may
be.
For purposes of determining compliance with this Section 4.04, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness permitted pursuant to clauses (i) through (xi) above,
the Company shall, in its sole discretion, be permitted to classify such item of
Indebtedness in any manner that complies with this Section 4.04 and may from
time to time reclassify such item of Indebtedness in any manner that would
comply with this Section 4.04 at the time of such reclassification. Accrual of
interest and the accretion of accreted value will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 4.04
SECTION 4.05. Limitation on Certain Asset Dispositions.
----------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, make any Asset Dispositions unless: (i)
the Company or such Restricted Subsidiary, as the case may be, receives
consideration for such Asset Disposition at least equal to the Fair Market Value
of the assets sold or disposed of, as determined by either (x) the Board of
Triton PCS Holdings, Inc., if at the time of such Asset Disposition, the Company
is a Subsidiary of Triton PCS Holdings, Inc. or (y) the Board of the Company if,
at the time of such Asset Disposition, the Company is not a Subsidiary of Triton
PCS Holdings, Inc., in good faith and evidenced by a resolution of such Board
filed with the Trustee; (ii) other than in the case of a Permitted Asset Swap,
not less than 75% of the consideration received by the Company or such
Restricted Subsidiary from the disposition consists of (x) cash or Cash
Equivalents, (y) the assumption of Indebtedness (other than non-recourse
Indebtedness or any Subordinated Indebtedness) of the Company or such Restricted
Subsidiary or other obligations relating to such assets (accompanied by the
irrevocable unconditional release of the Company or such Restricted Subsidiary
from all liability on the Indebtedness or other obligations assumed) or (z)
notes or other obligations received by the Company or such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash concurrently with the receipt of such notes or other
obligations (to the extent of the cash actually received by the Company); and
(iii) all Net Available Proceeds, less any amounts invested within 365 days of
such Asset Disposition to acquire all or substantially all of the assets of, or
a majority of the Voting Stock of, an entity primarily engaged in a Permitted
Business, to make a capital expenditure or to acquire other long-term assets
that are used or useful in a Permitted Business, are applied, on or prior to the
365th day after such Asset Disposition, to the permanent reduction and
prepayment of any Senior Debt of the Company then outstanding (including a
permanent reduction of the commitments in respect thereof) or to the making of
an offer to purchase the Company's 11% Senior Subordinated Discount Notes due
2008 or the Company's Senior Subordinated Notes due 2011 in accordance with the
terms of the indentures governing the terms of such notes. Any Net Available
Proceeds from any Asset Disposition which is subject to the immediately
preceding sentence that are not applied as provided in the immediately preceding
sentence shall be used promptly after the expiration of the 365th day after such
Asset Disposition (or earlier if the Company so elects), to make an Offer to
Purchase outstanding Notes, and other notes of the Company that rank pari passu
with the Notes to the extent required by the agreements governing the terms of
any such other notes at a purchase price in cash equal to 100% of the aggregate
principal amount plus accrued and unpaid interest to the Purchase Date.
Notwithstanding the foregoing, the Company may defer making any Offer to
Purchase outstanding Notes until there are aggregate unutilized Net Available
Proceeds from Asset Dispositions otherwise subject to the two immediately
preceding sentences equal to or in excess of $15.0 million (at which time, the
entire unutilized Net Available Proceeds from Asset Dispositions otherwise
subject to the two immediately preceding sentences, and not just the amount in
excess of $15.0 million, shall be applied as required pursuant to this
paragraph). Any remaining Net Available Proceeds following the completion of the
required Offer to Purchase may be used by the Company for any other purpose
(subject to the other provisions of this
-33-
Indenture) and the amount of Net Available Proceeds then required to be
otherwise applied in accordance with this covenant shall be reset to zero. The
provisions of this Section 4.05 will not apply to a transaction consummated in
compliance with the provisions of Article Five of this Indenture.
Pending application as set forth above, the Net Available Proceeds
of any Asset Disposition may be invested in Cash or Cash Equivalents or used to
reduce temporarily Indebtedness outstanding under any revolving credit agreement
to which the Company is a party and pursuant to which it has incurred
Indebtedness.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend, or make any distribution of any kind
or character (whether in cash, property or securities), in respect
of any class of Capital Stock of the Company excluding, any
dividends or distributions payable solely in shares of Qualified
Stock of the Company or in options, warrants or other rights to
acquire Qualified Stock of the Company,
(ii) purchase, redeem or otherwise acquire or retire for value any
shares of Capital Stock of the Company, any options, warrants or
rights to purchase or acquire such shares or any securities
convertible or exchangeable into such shares (other than any such
shares of Capital Stock, options, warrants, rights or securities
that are owned by the Company or a Restricted Subsidiary),
(iii) make any Investment (other than a Permitted Investment) in any
Person, other than the Company or a Restricted Subsidiary, or
(iv) redeem, defease, repurchase, retire or otherwise acquire or retire
for value, prior to its scheduled maturity, repayment or any
sinking fund payment, Subordinated Indebtedness (each of the
transactions described in clauses (i) through (iv) (other than any
exception to any such clause) being a "Restricted Payment");
------------------
if, at the time thereof:
--
(1) a Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment,
(2) immediately after giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.04(i), and
(3) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or
after December 31, 2000 (including any Designation Amount) exceeds
the sum (without duplication) of: (i) the amount of (x) the
Consolidated Cash Flow of the Company after December 31, 2000,
through the end of the latest full fiscal quarter for
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which consolidated financial statements of the Company are
available preceding the date of such Restricted Payment (treated as
a single accounting period) less (y) 150% of the cumulative
Consolidated Interest Expense of the Company after December 31,
2000, through the end of the latest full fiscal quarter for which
consolidated financial statements of the Company are available
preceding the date of such Restricted Payment (treated as a single
accounting period), plus (ii) the aggregate net cash proceeds
(other than Excluded Cash Proceeds) received by the Company as a
capital contribution in respect of Qualified Stock or from the
proceeds of a sale of Qualified Stock made after April 29, 1998
(excluding in each case (x) the proceeds from a sale of Qualified
Stock to a Restricted Subsidiary and (y) the proceeds from a sale,
other than from a Public Sale, of Qualified Stock the proceeds of
which are applied to optionally redeem Notes on or prior to
February 1, 2004), plus (iii) the aggregate net cash proceeds
received by the Company or any Restricted Subsidiary from the sale,
disposition or repayment (other than to the Company or a Restricted
Subsidiary) of any Investment made after April 29, 1998 and
constituting a Restricted Payment in an amount equal to the lesser
of (x) the return of capital with respect to such Investment and
(y) the initial amount of such Investment, in either case, less the
cost of disposition of such Investment, plus (iv) an amount equal
to the consolidated Net Investment on the date of Revocation made
by the Company and/or any of the Restricted Subsidiaries in any
Subsidiary that has been designated as an Unrestricted Subsidiary
after April 29, 1998 upon its redesignation as a Restricted
Subsidiary in accordance with Section 4.20, less (v) the amount of
all Restricted Payments made by the Company or any of its
Restricted Subsidiaries between April 29, 1998 and prior to January
1, 2001. For purposes of the preceding clause (ii), the value of
the aggregate net cash proceeds received by the Company from, or as
a capital contribution in connection with, the issuance of
Qualified Stock either upon the conversion of convertible
Indebtedness of the Company or any of its Restricted Subsidiaries
or in exchange for outstanding Indebtedness of the Company or any
of its Restricted Subsidiaries or upon the exercise of options,
warrants or rights will be the net cash proceeds received by the
Company or any of its Restricted Subsidiaries upon the issuance of
such Indebtedness, options, warrants or rights plus the incremental
amount received by the Company or any of its Restricted
Subsidiaries upon the conversions, exchange or exercise thereof.
For purposes of the preceding clause (iv), the value of the
consolidated Net Investment on the date of Revocation shall be
equal to the Fair Market Value of the aggregate amount of the
Company's and/or any Restricted Subsidiary's Investments in such
Subsidiary on the applicable date of Designation.
For purposes of determining the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount
thereof and property other than cash shall be valued at its Fair
Market Value on the date such Restricted Payment is made by the
Company or a Restricted Subsidiary, as the case may be.
(b) The foregoing provisions will not prohibit any of the following:
(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration
such payment would comply with the provisions of this Indenture;
(ii) so long as no Default or Event of Default shall have occurred and
be continuing, the purchase, redemption, retirement or other
acquisition of any Capital Stock of the Company out of the net cash
proceeds of the substantially concurrent capital contribution to
the Company in connection with Qualified Stock or out of the net
cash proceeds received by the Company from the substantially
concurrent issue or sale (other than to a Restricted Subsidiary) of
Qualified Stock; provided that (x) any such net cash proceeds shall
--------
be excluded from Section 4.06(a)(3)(ii) and (y) such proceeds, if
from a sale other than a Public Sale, are not applied to an
optional redemption of Notes on or prior to February 1, 2004;
(iii) so long as no Default or Event of Default shall have occurred and
be continuing, the purchase, redemption, retirement, defeasance or
other acquisition of Subordinated Indebtedness of the Company made
by exchange for or conversion into, or out of the net cash proceeds
received by the Company
-35-
from or out of a capital contribution to the Company in connection
with a substantially concurrent issue and sale (other than to a
Restricted Subsidiary) of (a) Qualified Stock (provided that (x)
--------
any such net cash proceeds are excluded from Section 4.06(a)(3)(ii)
and (y) such proceeds, if from a sale other than a Public Sale, are
not applied to an optional redemption of Notes on or prior to
February 1, 2004) or (b) other Subordinated Indebtedness of the
Company that has an Average Life equal to or greater than the
Average Life of the Subordinated Indebtedness being purchased,
redeemed, retired, defeased or otherwise acquired;
(iv) so long as no Default or Event of Default shall have occurred and
be continuing, the making of a direct or indirect Investment
constituting a Restricted Payment in an amount not to exceed the
amount of the proceeds of a capital contribution in respect of
Qualified Stock or from the issue or sale (other than to a
Restricted Subsidiary) of Qualified Stock of the Company; provided,
--------
however, that (x) any such net cash proceeds are excluded from
-------
Section 4.06(a)(3)(ii) and (y) such proceeds, if from a sale other
than a Public Sale, are not applied to an optional redemption of
Notes on or prior to February 1, 2004; or
(v) so long as no Default or Event of Default has occurred and is
continuing, dividends or distributions by the Company to Triton PCS
Holdings, Inc. to be used to repurchase, redeem, acquire or retire
for value any Capital Stock of Triton PCS Holdings, Inc. held by
any member of management of Triton PCS Holdings, Inc., the Company
or any of its Subsidiaries pursuant to any management equity
subscription agreement, stock option agreement or other similar
agreement; provided, however, that (x) the aggregate amount of such
-------- -------
dividends or distributions shall not exceed $2.0 million in any
twelve-month period, (y) any unused amount in any twelve-month
period may be carried forward to one or more future periods and (z)
the amount available as of the Issue Date under this clause (v)
shall be equal to $2.0 million plus the amount available as of the
Issue Date for such payments pursuant to the comparable clause of
the indenture governing the terms of the 11% Senior Subordinated
Discount Notes due 2008 or the amount available as of the Issue
Date for such payments pursuant to the comparable clause of the
indenture governing the terms of the 9 3/8% Senior Subordinated
Notes due 2011.
Restricted Payments made pursuant to clauses (i) and (v) of the immediately
preceding paragraph (b) shall be included in making the determination of
available amounts under Section 4.06(a)(3) and Restricted Payments made pursuant
to (ii), (iii) and (iv) of the immediately preceding paragraph (b) shall not be
included in making the determination of available amounts under Section
4.06(a)(3).
SECTION 4.07. Corporate Existence.
-------------------
Subject to Article Five, the Company shall do or shall cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each of
its Subsidiaries in accordance with the respective organizational documents of
each such Subsidiary and the rights (charter and statutory) and material
franchises of the Company and its Subsidiaries; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise, or the
corporate existence of any Subsidiary, if the Board of either (x) Triton PCS
Holdings, Inc. if at the time, the Company is a Subsidiary of Triton PCS
Holdings, Inc. or (y) the Board of the Company if at the time the Company is not
a subsidiary of Triton PCS Holdings, Inc., shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries, taken as a whole, and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders; provided, further,
-------- -------
however, that a determination of either Board shall not be required in the event
-------
of a merger of one or more Wholly Owned Subsidiaries with or into another Wholly
Owned Subsidiary or another Person, if the surviving Person is a Wholly Owned
Subsidiary organized under the laws of the United States or a State thereof or
of the District of Columbia.
-36-
SECTION 4.08. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries; provided, however, that the Company shall not be required to
-------- -------
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders.
SECTION 4.09. Notice of Defaults.
------------------
Within five days after becoming aware of any Default, if such Default
is then continuing, the Company shall promptly deliver an Officers' Certificate
to the Trustee specifying the details of such Default and the action which the
Company proposes to take with respect thereto.
SECTION 4.10. Maintenance of Properties.
-------------------------
The Company shall cause all material properties owned by or leased to
it or any of its Subsidiaries and used or useful in the conduct of its business
or the business of any of its Subsidiaries to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board or of the board of directors of the Subsidiary
concerned, or of an officer (or other agent employed by the Company or of any of
its Subsidiaries) of the Company or such Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Subsidiaries, and if such discontinuance or
disposal is not adverse in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 45 days after the end
of each of the first three fiscal quarters of the Company and within 90 days
after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default by the Company that occurred during such fiscal quarter or fiscal year.
If they do know of such a Default, the certificate shall describe all such
Defaults, their status and the action the Company is taking or proposes to take
with respect thereto. The first certificate to be delivered by the Company
pursuant to this Section 4.11 shall be for the fiscal quarter ending March 31,
2002.
SECTION 4.12. Provision of Financial Information.
----------------------------------
Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding, the Company will furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and
-37-
its consolidated Subsidiaries and, with respect to the annual information only,
a report thereon by the Company's certified independent accountants, and (ii)
all current reports that would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports, in each case within
the time period specified in the Commission's rules and regulations; provided,
--------
however, that no such information or reports shall be required prior to the date
-------
on which the exchange offer registration statement is required by the terms of
the Registration Rights Agreement to be filed with the Commission. In addition,
following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company will, for so long as any Notes remain outstanding, furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it 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.
SECTION 4.14. Change of Control.
-----------------
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company will commence an Offer to Purchase
all outstanding Securities at a purchase price in cash equal to 101% of the
aggregate principal amount, plus accrued and unpaid interest, if any, to the
Purchase Date. Such Offer to Purchase will be consummated not earlier than 30
days and not later than 60 days after the commencement thereof. Each Holder
shall be entitled to tender all or any portion of the Securities owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be in an integral multiple of $1,000
aggregate principal amount.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. The Company will not be required to make an Offer
to Purchase upon a Change of Control if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase made
by the Company and purchases all Securities validly tendered and not withdrawn
under such Offer to Purchase.
SECTION 4.15. Limitation on Layered Debt.
--------------------------
The Company will not (i) directly or indirectly, Incur any
Indebtedness that by its terms would expressly rank senior in right of payment
to the Notes and rank subordinate in right of payment to any other Indebtedness
of the Company and (ii) cause or permit any Guarantor to, and no Guarantor will,
directly or indirectly, incur any Indebtedness that by its terms would expressly
rank senior in right of payment to the Guarantee of such Guarantor and rank
subordinate in right of payment to any other Indebtedness of such
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Guarantor; provided, however, that no Indebtedness shall be deemed to be
-------- -------
subordinated solely by virtue of being unsecured.
SECTION 4.16. Limitation on Restrictions Affecting Restricted
-----------------------------------------------
Subsidiaries.
------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (i) pay, directly or indirectly, dividends, in cash
or otherwise, or make any other distributions in respect of its Capital Stock or
pay any Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary, (ii) make any Investment in the Company or any other
Restricted Subsidiary or (iii) transfer any of its property or assets to the
Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (a) any agreement in effect on the
Issue Date as any such agreement is in effect on the Issue Date, (b) any Senior
Credit Facilities, (c) any agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which such Restricted Subsidiary
was acquired by the Company and outstanding on such date and not Incurred in
anticipation or contemplation of becoming a Restricted Subsidiary; provided,
--------
however, that such encumbrance or restriction shall not apply to any property or
-------
assets of the Company or any Restricted Subsidiary other than such Restricted
Subsidiary, (d) customary provisions contained in an agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of a Restricted Subsidiary; provided, however, that such
-------- -------
encumbrance or restriction is applicable only to such Restricted Subsidiary or
its property and assets, (e) any agreement effecting a Refinancing or amendment
of Indebtedness Incurred pursuant to any agreement referred to in clause (a)
above; provided, however, that the provisions contained in such Refinancing or
-------- -------
amendment agreement relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions contained in the
agreement that is the subject thereof in the reasonable judgment of (i) the
Board of Triton PCS Holdings, Inc. if, at the time of such Refinancing or
amendment, the Company is a Subsidiary of Triton PCS Holdings, Inc. or (ii) the
Board of the Company if, at the time of such Refinancing or amendment, the
Company is not a Subsidiary of Triton PCS Holdings, Inc., (f) this Indenture,
(g) applicable law or any applicable rule, regulation or order, (h) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of any Restricted Subsidiary, (i) purchase money obligations
for property acquired in the ordinary course of business that impose
restrictions of the type referred to in clause (iii) of this Section 4.16; (j)
restrictions of the type referred to in clause (iii) of this Section 4.16
contained in security agreements securing Indebtedness of a Restricted
Subsidiary to the extent that such Liens were otherwise incurred in accordance
with Section 4.17 and restrict the transfer of property subject to such
agreements; or (k) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business.
SECTION 4.17. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to directly or indirectly, create, cause, incur or suffer to exist
any Lien on or with respect to any Capital Stock or any property or assets of
the Company or such Restricted Subsidiary owned on the Issue Date or thereafter
created or acquired to secure any Indebtedness, without making, or causing such
Restricted Subsidiary to make, effective provision for securing the Securities
and all other amounts due under this Indenture equally and ratably with such
Indebtedness or, in the event such Indebtedness is Subordinated Indebtedness,
prior to such Indebtedness, as to such property or assets for so long as such
Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens existing on
the Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens
securing Senior Debt (including Liens securing Indebtedness under any Senior
Credit Facilities) and any guarantees thereof to the extent that the
Indebtedness secured thereby is permitted to be incurred under Section 4.04;
(iii) Liens securing only the Securities and the Guarantees, if any;
-39-
(iv) Liens in favor of the Company or any Guarantor; (v) Liens to secure
Indebtedness Incurred in connection with Vendor Credit Arrangements; (vi) Liens
on property existing immediately prior to the time of acquisition thereof (and
not created in connection with or in anticipation or contemplation of the
financing of such acquisition); (vii) Liens on property of a Person existing at
the time such Person is acquired or merged with or into or consolidated with the
Company or any such Restricted Subsidiary (and not created in connection with or
in anticipation or contemplation thereof); (viii) Liens to secure the
performance of statutory obligations, surety or appeal bonds or bid or
performance bonds, or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's or other similar Liens, in any case incurred in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate process of law, if a reserve or
other appropriate provision, if any, as is required by GAAP shall have been made
therefor; (ix) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided,
--------
however, that any reserve or other appropriate provision that shall be required
-------
in conformity with GAAP shall have been made therefor; (x) Liens to secure
Indebtedness Incurred to Refinance, in whole or in part, any Indebtedness
secured by Liens referred to in the foregoing clauses (i)-(ix) so long as such
Liens do not extend to any additional category of property and the principal
amount of Indebtedness so secured is not increased except for the amount of any
premium required to be paid in connection with such Refinancing pursuant to the
terms of the Indebtedness Refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such Refinancing by means
of a tender offer, exchange offer or privately negotiated repurchase, plus the
expenses of the issuer of such Indebtedness reasonably incurred in connection
with such Refinancing; and (xi) Liens in favor of the Trustee as provided for in
this Indenture on money or property held or collected by the Trustee in its
capacity as Trustee.
SECTION 4.18. Subsidiary Guarantees.
---------------------
The Company shall not permit any Subsidiary to become a direct or
indirect obligor under, or in respect of, any Senior Credit Facilities without
causing such Subsidiary to become a Guarantor. Any such Subsidiary shall (a)
execute and deliver a supplemental indenture in form reasonably satisfactory to
the Trustee pursuant to which such Subsidiary shall unconditionally guarantee
all of the Company's obligations under the Securities and this Indenture on the
terms set forth in Articles Eleven and Twelve and (b) deliver to the Trustee an
Opinion of Counsel that such supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and constitutes a valid and legally
binding and enforceable obligation of such Subsidiary (subject, in the case of
enforceability, to customary bankruptcy, insolvency, fraudulent conveyance and
similar exceptions).
Any Subsidiary of the Company that ceases to be a direct or indirect
obligor (including as guarantor) under, or in respect of all Senior Credit
Facilities shall be released from its Guarantee upon delivery of an Officers'
Certificate to the Trustee certifying to such effect.
The Company may, at its option, cause any of its Subsidiaries to be a
Guarantor.
SECTION 4.19. Limitation on Activities of the Company and the Restricted
----------------------------------------------------------
Subsidiaries.
------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business, except to such
extent as is not material to the Company and its Restricted Subsidiaries, taken
as a whole.
-40-
SECTION 4.20. Limitation on Designations of Unrestricted Subsidiaries.
-------------------------------------------------------
The Company may designate any Subsidiary of the Company (other than
the License Subsidiary, the Real Property Subsidiary and the Equipment
Subsidiary) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default or Event of Default shall have occurred and be continuing
at the time of or after giving effect to such Designation; and
(ii) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of
such Designation) in an amount (the "Designation Amount") equal to the
Fair Market Value of the aggregate amount of its Investments in such
Subsidiary on such date; and
(iii) except in the case of a Subsidiary in which an Investment is being
made pursuant to and as permitted by Section 4.06(b), the Company
would be permitted to incur $1.00 of additional Indebtedness pursuant
to clause (i) of Section 4.04 at the time of Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
4.06 for all purposes of this Indenture in the Designation Amount.
The Company shall not, and shall not permit any Restricted Subsidiary
to, at any time (x) provide direct or indirect credit support for or a guarantee
of any Indebtedness of any Unrestricted Subsidiary (including of any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except,
in the case of clause (x) or (y), to the extent permitted under Section 4.06.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if:
(a) no Default shall have occurred and be continuing at the time
of and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if incurred at such time,
have been permitted to be incurred for all purposes of this Indenture.
All Designations and Revocations must be evidenced by resolutions of
the Board of the Company delivered to the Trustee certifying compliance with the
foregoing provisions.
-41-
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales of
-----------------------------------------------------------
Assets.
------
The Company will not consolidate or merge with or into any Person, or
sell, assign, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to consolidate or merge with or into any Person or sell,
assign, lease, convey or otherwise dispose of) all or substantially all of the
Company's assets (determined on a consolidated basis for the Company and the
Restricted Subsidiaries), whether as an entirety or substantially an entirety in
one transaction or a series of related transactions, including by way of
liquidation or dissolution, to any Person unless, in each such case: (i) the
entity formed by or surviving any such consolidation or merger (if other than
the Company or such Restricted Subsidiary, as the case may be), or to which such
sale, assignment, lease, conveyance or other disposition shall have been made
(the "Surviving Entity"), is a corporation organized and existing under the laws
----------------
of the United States, any state thereof or the District of Columbia; (ii) the
Surviving Entity assumes by supplemental indenture all of the obligations of the
Company on the Securities and under this Indenture; (iii) immediately after
giving effect to such transaction and the use of any net proceeds therefrom on a
pro forma basis, the Company or the Surviving Entity, as the case may be, could
Incur at least $1.00 of additional Indebtedness pursuant to Section 4.04(i);
(iv) immediately after giving effect to such transaction and treating any
Indebtedness that becomes an obligation of the Company or any Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary, as the case may be, at the time of the
transaction, no Default or Event of Default shall have occurred and be
continuing; and (v) if, as a result of any such transaction, property or assets
of the Company or a Restricted Subsidiary would become subject to a Lien not
excepted from restrictions on Liens set forth in Section 4.17, the Company, the
Restricted Subsidiary or the Surviving Entity, as the case may be, shall have
secured the Securities as required by Section 4.17. The provisions of this
Section 5.01 shall not apply to any merger of a Restricted Subsidiary with or
into the Company or a Wholly Owned Subsidiary or the release of any Guarantor in
accordance with the terms of its Guarantee and this Indenture in connection with
any transaction complying with Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon the execution of a supplemental indenture by the Surviving Person
in form and substance satisfactory to the Trustee (as evidenced by the Trustee's
execution thereof) in accordance with Section 5.01, the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
and shall assume all obligations of, the Company or such Subsidiary, as the case
may be, under this Indenture, the Registration Rights Agreement and the
Securities or the Guarantees, as the case may be, with the same effect as if
such Surviving Person had been named as the Company or such Subsidiary, as the
case may be, herein and therein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture, the Registration Rights Agreement and the Securities or the
Guarantees, as the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
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(a) the Company fails to pay principal of (or premium, if any, on) any
Security when due (whether or not prohibited by Article Eight or
Twelve);
(b) the Company fails to pay any interest on any Security when due,
continued for 30 days (whether or not prohibited by Article Eight or
Twelve);
(c) the Company defaults in the payment of principal of and interest on
Securities required to be purchased pursuant to an Offer to Purchase
under Sections 4.05 or 4.14 hereof when due and payable (whether or not
prohibited by Article Eight or Twelve);
(d) the Company fails to perform or comply with any of the provisions of
Article Five;
(e) the Company fails to perform any other covenant or agreement of the
Company under this Indenture or the Securities continued for 60 days
after written notice to the Company by the Trustee or Holders of at
least 25% in aggregate principal amount of outstanding Securities;
(f) the Company defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any of its
Subsidiaries having an outstanding principal amount of $15.0 million or
more individually or in the aggregate that has resulted in the
acceleration of the payment of such Indebtedness or failure to pay
principal when due at the stated final maturity of any such
Indebtedness;
(g) the rendering of a final judgment or judgments (not subject to appeal)
against the Company or any Restricted Subsidiary in an amount of $15.0
million or more which remains undischarged or unstayed for a period of
60 days after the date on which the right to appeal has expired;
(h) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(1) is for relief against the Company or any Material Subsidiary
in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any Material Subsidiary
or for all or substantially all of its property, or
(3) orders the liquidation of the Company or any Material
Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60 days;
provided, however, that if the entry of such order or decree is appealed and
-------- -------
dismissed on appeal then the Event of Default hereunder by reason of the entry
of such order or decree shall be deemed to have been cured; or
-43-
(j) any Guarantee of a Material Subsidiary ceases to be in full force
and effect or is declared null and void and unenforceable or is
found to be invalid or any Guarantor denies its liability under
its Guarantee (other than by reason of a release of such Guarantor
from its Guarantee in accordance with the terms of this Indenture
and such Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
--------------
Federal, state or foreign law for the relief of debtors. The term "Custodian"
---------
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default with respect to
the Company specified in Section 6.01(h) or (i)) shall occur and be continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the outstanding Securities by notice in writing to the Company (and to the
Trustee, if given by the Holders) may accelerate the maturity of all Securities;
provided, however, that after such acceleration, but before a judgment or decree
-------- -------
based on acceleration, the Holders of a majority in aggregate principal amount
of outstanding Securities may rescind and annul such acceleration if all
Defaults, other than the non-payment of accelerated principal, have been cured
or waived as provided in this Indenture. If an Event of Default specified in
Section 6.01(h) or (i) occurs, the outstanding Securities will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing 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 cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
----------------------
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, (i) the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default and its consequences, except a Default
in the payment of principal of and interest on any Security as specified in
Section 6.01(a) or (b), (ii) a default arising from failure to effect an Offer
to Purchase required under Section 4.05 or 4.14 or (iii) a Default in respect of
any term or provision of this Indenture that may not be amended or modified
without the consent of each Holder affected as provided in Section 10.02. The
Company shall deliver to the Trustee an Officers' Certificate stating that the
requisite percentage of Holders have consented to such waiver and attaching
copies of such consents. In case of any such waiver, the Company, the Trustee
and the Holders shall be restored to their former positions and rights hereunder
and under the Securities, respectively. This paragraph of this Section 6.04
shall be in lieu of (S) 316(a)(1)(B) of the TIA and such (S) 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occourred, and any Event of Default araising
therefrom shall be deemed to have been cured and not to have
-44-
occurred for every purpose of this Indenture and the Securities, but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided, however, that the
-------- -------
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA, and such (S) 316(a)(1)(A)
of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue
a remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision
of indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the outstanding Securities (excluding Affiliates
of the Company) do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
limitations do not apply to a suit instituted by a Holder of a Note
for enforcement of payment of the principal of and premium, if any, or of
interest on such Security on or after the respective due dates therefor.
SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, and interest
on the Securities, on or after the respective due dates therefor, 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.
-45-
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of interest or principal specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal of and
premium, if any, and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
--- -----
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: subject to Articles Eight and Twelve, to Holders for amounts
due and unpaid on the Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees 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
-46-
shall not apply to a suit by the Trustee, a suit by a Holder or group of Holders
of more than 10% in aggregate principal amount of the outstanding Securities, or
to any suit instituted by any Holder for the enforcement or the payment of the
principal, premium, if any, or interest on any Securities on or after the
respective due dates therefor.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions conforming to the requirements of this Indenture;
provided, however, the Trustee shall examine the certificates and
-------- -------
opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take
any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing
that repayment of such funds is not assured to it or it does not
receive an indemnity satisfactory to it in its sole discretion against
such risk, liability, loss, fee or expense which might be incurred by
it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
-47-
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the
Company. Money or assets held in trust by the Trustee need not be
segregated from other funds or assets except to the extent required by
law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in 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 consult with
counsel of its selection and may require an Officers' Certificate and
an Opinion of Counsel, which shall conform to the provisions of
Section 13.05. The Trustee shall not be liable for any action it
takes, suffers or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent
or attorney (other than an agent who is an employee of the Trustee)
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 reasonably believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(e) 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 Securityholders pursuant to this Indenture, unless such
Securityholders 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.
(f) Provided the Trustee acts in good faith, the Trustee shall not be
bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Default unless a
Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder; and
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this
-48-
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously
delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
------------------
The Trustee shall, within 90 days after the occurrence of any Default
or Event of Default with respect to the Securities, give the Holders notice of
all uncured Defaults or Events of Default known to it; provided, however, that,
-------- -------
except in the case of an Event of Default or a Default in any payment with
respect to the Securities or a Default or Event of Default in complying with
Section 5.01, the Trustee shall be protected in withholding such notice if and
so long as the Board, the executive committee or a trust committee or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such May 15 that complies
with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b), (c) and
(d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission, the Company and each stock
exchange, if any, on which the Securities are listed in accordance with TIA (S)
313(d).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any securities exchange or of any delisting
therefrom.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents,
-49-
accountants, experts and counsel and any taxes or other expenses incurred by a
trust created pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee or any predecessor Trustee and
their agents for, and hold them harmless against any and all loss, damage,
claims, liability or expense, including taxes (other than franchise taxes
imposed on the Trustee and taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and of defending itself against any claim (whether asserted by any
Securityholder or the Company or any other Person) or liability in connection
with the exercise or performance of any of their powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is due
to their own willful misconduct, negligence or bad faith. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. However, the failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder (unless and
only to the extent that such failure results in the loss or compromise of any
rights or defenses). The Company shall defend the claim and the Trustee shall
cooperate in the defense (and may employ its own counsel) at the Company's
expense; provided, however, that the Company's reimbursement obligation with
-------- -------
respect to counsel employed by the Trustee will be limited to the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its written consent, which consent shall not be unreasonably
withheld.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Nine and any rejection or termination under any Bankruptcy Law.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in aggregate principal amount of the
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
-50-
If the Trustee resigns or is removed 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 Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation
or banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company, the related bank
holding company) shall have a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition. If
the Trustee has or shall acquire any "conflicting interest" within the meaning
of TIA (S) 310(b), the Trustee and the Company shall comply with the provisions
of TIA (S) 310(b); provided, however, that there shall be excluded from the
-------- -------
operation of TIA (S) 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA (S) 310(b)(1) are met. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Seven.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
-51-
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt.
--------------------------------------
The Company covenants and agrees, and the Trustee and each Holder by
acceptance of the Securities likewise covenant and agree, that all Securities
shall be issued subject to the provisions of this Article; and each Person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that all payments of the principal of,
premium, if any, and interest (including Additional Interest) on the Securities
by the Company shall, to the extent and in the manner set forth in this Article,
be subordinated and junior in right of payment to the prior payment in full in
cash of all existing and future Senior Debt of the Company.
SECTION 8.02. No Payment on Securities in Certain Circumstances.
-------------------------------------------------
No direct or indirect payment by or on behalf of the Company of
principal of, premium, if any, or interest (including Additional Interest) on
the Securities (other than payments to Holders from funds held in trust for the
benefit of Holders pursuant to Section 9.01), whether pursuant to the terms of
the Securities or upon acceleration, by way of repurchase, redemption,
defeasance or otherwise, will be made if, at the time of such payment, there
exists a default in the payment when due of all or any portion of the
obligations under or in respect of any Designated Senior Debt, whether at
maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of Designated Senior
Debt. In addition, during the continuance of any non-payment default or
non-payment event of default with respect to any Designated Senior Debt pursuant
to which the maturity thereof may be accelerated, and upon receipt by the
Trustee of written notice (a "Payment Blockage Notice") from a holder or holders
-----------------------
of such Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, then, unless and until such default or event of default
has been cured or waived or has ceased to exist or such Designated Senior Debt
has been discharged or repaid in full in cash, or the requisite holders of such
Designated Senior Debt have otherwise agreed in writing, no payment or
distribution will be made by or on behalf of the Company on account of or with
respect to the Securities (except payments to Holders from funds held in trust
for the benefit of Holders pursuant to Section 9.01), during a period (a
"Payment Blockage Period") commencing on the date of receipt of such Payment
-----------------------
Blockage Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein to the contrary, (x) in no event will a
Payment Blockage Period extend beyond 179 days from the date the Payment
Blockage Notice in respect thereof was given and (y) there must be 180 days in
any 360-day period during which no Payment Blockage Period is in effect. Not
more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. No default or event of
default that existed or was continuing on the date of commencement of any
Payment Blockage Period with respect to the Designated Senior Debt initiating
such Payment Blockage Period may be, or be made, the basis for the commencement
of any other Payment Blockage Period by the holder or holders of such Designated
Senior Debt or the trustee or agent acting on behalf of such Designated Senior
Debt, whether or not within a period of 360 consecutive days, unless such
default or event of default has been cured or waived for a period of not less
than 90 consecutive days.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by Section
8.02(a), such payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Designated Senior Debt or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Designated Senior
-52-
Debt may have been issued, as their respective interests may appear, but only to
the extent that, upon notice from the Trustee to the holders of Designated
Senior Debt that such prohibited payment has been made, the holders of the
Designated Senior Debt (or their representative or representatives or a trustee)
notify the Trustee in writing of the amounts then due and owing on the
Designated Senior Debt, if any, and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Designated Senior Debt.
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
-----------------------------------------------
Upon any payment or distribution of assets or securities of the Company
of any kind or character (whether in cash, property or securities) upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due with respect
to Senior Debt of the Company (including any interest accruing subsequent to an
event of bankruptcy or insolvency, whether or not allowed or allowable
thereunder) shall first be paid in full in cash, before the Holders or the
Trustee on their behalf shall be entitled to receive any payment by the Company
of the principal of, premium, if any, or interest on the Securities, or any
payment to acquire any of the Securities for cash, property or securities, or
any distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by, or on behalf of, the Company of
the principal of, premium, if any, or interest on the Securities upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, directly to the holders of Senior Debt of the Company
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their representative(s) or to the trustee(s) under any
indenture pursuant to which any such Senior Debt may have been issued as their
respective interests may appear, to the extent necessary to pay all such Senior
Debt in full after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder at a time when such
payment or distribution is prohibited by Section 8.03(a) and before all
obligations in respect of Senior Debt are paid in full, or payment provided for,
such payment or distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Debt or their
respective representative(s), or to the trustee(s) under any indenture pursuant
to which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of such Senior Debt.
SECTION 8.04. Subrogation.
-----------
Upon the payment in full of all Senior Debt, or provision for payment,
the Holders shall be subrogated (equally and ratably with all pari passu
---- -----
Indebtedness) to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company made on such Senior
Debt until the principal of, premium, if any, and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders or the Trustee on their behalf would be entitled
except for the provisions of this Article, and no payment over pursuant to the
provisions of this Article to the holders of Senior Debt by Holders or the
Trustee on their behalf shall, as between the Company, its creditors other than
holders of Senior Debt, and the Holders, be deemed to be a payment by the
Company to or on account of the Senior Debt. It is understood that
-53-
the provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
the Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article shall have been
applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior Debt.
SECTION 8.05. Obligations of Company Unconditional.
------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior Debt,
nor shall anything herein or therein prevent any Holder or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of the Senior Debt in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders to take any
action to declare the Securities to be due and payable prior to their stated
maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt then due and payable shall first be paid
-------- -------
in full before the Holders or the Trustee are entitled to receive any direct or
indirect payment from the Company of principal of or interest on the Securities.
SECTION 8.06. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article.
Failure to give such notice to the Trustee shall not affect the subordination of
the Securities to Senior Debt. The Trustee shall not be charged with knowledge
of the existence of any default or event of default with respect to any Senior
Debt or of any other facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee shall have received notice in
writing to that effect signed by an Officer of the Company, or by a holder of
Senior Debt or trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
-------- -------
not have received the notice provided for in this Section 8.06 at least three
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security),
then, regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive any moneys from the Company and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
Nothing contained in this Section 8.06 shall limit the right of the holders of
Senior Debt to recover payments as contemplated by Section 8.02 or 8.03. The
Trustee shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Senior Debt (or a trustee on behalf of, or other representative of, such holder)
to establish that such notice has been given by a holder of such Senior Debt or
a trustee or representative on behalf of any such holder.
-54-
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets or securities referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 8.08. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt (except as provided in Section 8.03(b)). The
Trustee shall not be charged with knowledge of the existence of Senior Debt or
of any facts that would prohibit any payment hereunder unless the Trustee shall
have received written notice to that effect at the address of the Trustee set
forth in Section 13.02.
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of
---------------------------------------------------------
the Company or Holders of Senior Debt.
-------------------------------------
No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with. The
provisions of this Article are intended to be for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt.
SECTION 8.10. Securityholders Authorize Trustee To Effectuate
-----------------------------------------------
Subordination of Securities.
---------------------------
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency,
-55-
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the filing of a claim for the unpaid balance
of its or his Securities in the form required in those proceedings.
SECTION 8.11. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article shall not be construed
as preventing the occurrence of an Event of Default specified in Section
6.01(a), (b) or (c).
SECTION 8.12. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 8.13. No Waiver of Subordination Provisions.
-------------------------------------
Without in any way limiting the generality of Section 8.09, the holders
of Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (a) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in
--------------------------------------------------------
Trust for Securityholders; Payments May Be Paid Prior to
--------------------------------------------------------
Dissolution.
-----------
All money and United States Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Article Nine shall be for
the sole benefit of the Holders and shall not be subject to this Article Eight.
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 8.02,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments or from effecting a
termination of the Company's and the Guarantors' obligations under the
Securities and this Indenture as provided in Article Nine, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the
Securities, to the holders entitled thereto unless at least three Business Days
prior to the date upon which such payment becomes due and payable, the Trustee
shall have received the written notice provided for in Section 8.02(b) or in
Section 8.06.
-56-
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.
------------------------------------
(a) Discharge. Subject to the provisions of Article Eight, the Company may
---------
terminate its substantive obligations and the substantive obligations
of the Guarantors, if any, in respect of the Securities and the
Guarantees by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by the Company on account of
principal of, premium, if any, and interest on all Securities or
otherwise.
(b) Covenant Defeasance. In addition to the provisions of Section 9.01(a),
-------------------
the Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect
to a Default or Event of Default specified in Section 6.01(h) or (i),
any time on or prior to the 91st calendar day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 91st day)) and provided that no default
under any Senior Debt would result therefrom, terminate its substantive
obligations and the substantive obligations of the Guarantors, if any,
in respect of the Securities and the Guarantees (except for the
Company's obligation to pay the principal of (and premium, if any, on)
and the interest on the Securities and such Guarantors' guarantee
thereof) by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or direct non-callable obligations
of the United States of America for the payment of which its full faith
and credit is pledged ("United States Government Obligations")
------------------------------------
sufficient (without reinvestment) to pay all remaining indebtedness on
the Securities to maturity or to redemption, (ii) delivering to the
Trustee either an Opinion of Counsel or a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations,
(iii) delivering to the Trustee an Opinion of Counsel to the effect
that the Company's exercise of its option under this paragraph will not
result in the Company, the Trustee or the trust created by the
Company's deposit of funds pursuant to this provision becoming or being
deemed to be an "investment company" under the Investment Company Act
of 1940, as amended, and (iv) delivering to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that there has been
compliance with all conditions precedent provided for herein.
(c) Legal Defeasance. In addition to the provisions of Section 9.01(a) and
----------------
(b), the Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect
to a Default specified in Section 6.01(h) or (i), any time on or prior
to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
after such 91st day)) and provided that no default under any Senior
Debt would result therefrom, terminate all of its substantive
obligations and all of the substantive obligations of the Guarantors in
respect of the Securities and the Guarantees (including the Company's
obligation to pay the principal of (and premium, if any, on) and
interest on the Securities and such Guarantors' guarantee thereof) by
(i) depositing with the Trustee, under the terms of an irrevocable
trust agreement, money or United States Government Obligations
sufficient (without reinvestment) to pay all remaining indebtedness on
the Securities to maturity or to redemption, (ii) delivering to the
Trustee either a ruling directed to the Trustee from the Internal
Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and termination of obligations or an Opinion of Counsel
based upon such a ruling addressed to the Trustee or a change in the
applicable Federal tax law since the date of this Indenture, to such
effect, (iii) delivering to the Trustee an Opinion of Counsel to the
effect that the Company's exercise of its option under this paragraph
will not result in the Company, the Trustee or the trust created by the
Company's deposit of funds pursuant to this
-57-
provision becoming or being deemed to be an "investment company" under
the Investment Company Act of 1940, as amended, and (iv) delivering to
the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that there has been compliance with all conditions precedent
provided for herein.
(d) Notwithstanding the foregoing paragraphs 9.01(b) and (c) above, the
Company's obligations contained in Sections 2.03, 2.05, 2.06, 2.07,
4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until the Securities are
no longer outstanding. In addition, notwithstanding the foregoing
paragraph 9.01(b), in that instance the Company's obligations contained
in Section 4.01 shall also survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Sections 7.07,
9.03 and 9.04 shall survive. The Company may make an irrevocable
deposit pursuant to this Section 9.01 only if at such time it is not
prohibited from doing so under the subordination provisions of this
Indenture and the Company has delivered to the Trustee and any Paying
Agent an Officers' Certificate to that effect. After such delivery or
irrevocable deposit and delivery of an Officers' Certificate and
Opinion of Counsel, the Trustee upon request of the Company shall
acknowledge in writing the discharge of the Company's and the
Guarantors' (if any) obligations under the Securities, the Guarantees
and this Indenture other than those surviving obligations specified in
this paragraph (d).
SECTION 9.02. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities. The Company shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States
Government Obligations deposited pursuant to Section 9.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
SECTION 9.03. Repayment to Company.
--------------------
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any time.
The Trustee shall pay to the Company upon such request any money held by it for
the payment of principal (premium, if any) or interest that remains unclaimed
for two years; provided, however, that the Trustee before being required to make
-------- -------
any payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that, after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Securityholders entitled
to money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 9.04. Reinstatement.
-------------
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 9.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
and the Guarantors' (if any) obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 9.01 until such time as the Trustee is permitted to apply all such money
or United States Government Obligations in accordance with Section 9.01;
provided, however, that if the Company has made any payment of interest on or
-------- -------
principal of any Securities because of the reinstatement of its
-58-
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
--------------------------
The Company and the Guarantors, if any, when authorized by a
resolution of their respective Boards, and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency; provided, however,
-------- -------
that such amendment or supplement does not adversely affect the
rights of any Holder;
(ii) to effect the assumption by a successor Person of all obligations of
the Company under the Securities and this Indenture in connection
with any transaction complying with Article Five of this Indenture;
(iii) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(iv) to comply with any requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional benefit or
rights to the Holders;
(vi) to make any other change that does not materially adversely affect
the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any Guarantor and
the assumption by any such successor of the covenants of such
Guarantor herein and in the Guarantee;
(viii) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements of Section
4.17 or otherwise; or
(x) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee in accordance with the provisions of
Sections 4.18 or 11.03 and to add a Guarantor pursuant to the
requirements of Section 4.18;
provided, however, that the Company has delivered to the Trustee an Opinion of
-------- -------
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
-----------------------
The Company, the Guarantors, if any, and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not:
-59-
(1) change the Stated Maturity of the principal of any Security;
(2) alter the optional redemption or repurchase provisions of any
Security or this Indenture in a manner adverse to the holders of the
Securities (other than, prior to the consummation of an Asset
Disposition or occurrence of a Change of Control, the provisions of
this Indenture relating to any Offer to Purchase required under
Section 4.05 or 4.14);
(3) reduce the principal amount of any Security;
(4) reduce the rate of or change the time for payment of interest on
any Security;
(5) change the place or currency of payment of the principal of or
interest on any Security;
(6) modify any provisions of this Indenture relating to the waiver of
past defaults (other than to add sections of this Indenture subject
thereto) or the right of the Holders to institute suit for the
enforcement of any payment on or with respect to any Security or the
Guarantees, or the modification and amendment of this Indenture and
the Securities (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without
the consent of each Holder affected);
(7) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any
Default;
(8) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, any Security (except a rescission
of acceleration of the Securities by the Holders as provided in this
Indenture and a waiver of the payment default that resulted from such
acceleration);
(9) modify the ranking or priority of the Securities or the
Guarantee, or modify the definition of Senior Debt or Designated
Senior Debt or amend or modify the subordination provisions of this
Indenture in any manner adverse to the Holders;
(10) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture; or
(11) modify any of the provisions (including the definitions relating
thereto) relating to an Offer to Purchase required under Section 4.05
or 4.14 in a manner materially adverse to the Holders of Securities
with respect to Change of Control that has occurred or any Asset
Disposition that has been consummated.
The Holders of a majority in aggregate principal amount of the
outstanding Securities, on behalf of all Holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this Indenture.
Subject to certain rights of the Trustee, as provided in this Indenture, the
Holders of a majority in aggregate principal amount of the outstanding
Securities, on behalf of all Holders of Securities, may waive any past default
under this Indenture, except a default in the payment of principal, premium or
interest or a default arising from failure to purchase any Security tendered
pursuant to an Offer to Purchase required pursuant to Section 4.14, or a default
in respect of a provision that under this Indenture cannot be modified or
amended without the consent of the Holder of each outstanding Security affected.
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It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by written notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in the second
sentence of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
--------------------------------
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article Ten is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and the Guarantors, enforceable in accordance with its
terms (subject to customary exceptions). The Trustee shall execute any
amendment, supplement or waiver authorized pursuant to this Article Ten,
provided, however, that the Trustee may, but shall not be obligated to, execute
-------- -------
any such amendment, supplement or waiver which affects the
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Trustee's own rights, duties or immunities under this Indenture or otherwise. In
signing any amendment, supplement or waiver, the Trustee shall be entitled to
receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
-----------------------
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: the principal of, premium, if any, and interest (including
Additional Interest) on the Securities will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and, to the extent permitted by
law, interest on any overdue interest (including Additional Interest) on the
Securities and all other obligations of the Company to the Holders or the
Trustee hereunder or under the Securities will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; subject,
however, to the limitations set forth in Section 11.04. Each such Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each such Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that the Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture, and
such Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purpose of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
SECTION 11.02. Severability.
------------
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
----------------------
If the Securities are defeased in accordance with Section 9.01(c), or
if all of the Capital Stock of any Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition (or which, but for the provisions of clause
(c) of the definition of such term, would constitute an Asset Disposition), and,
if required by this Indenture, (x) the Net Available Proceeds from such Asset
Disposition are used in accordance with Section 4.05 or (y) the Company delivers
to the Trustee an Officers' Certificate covenanting that the Net Available
Proceeds from such Asset Disposition will be used in
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accordance with Section 4.05 and within the time limits specified by such
Section 4.05, then such Guarantor shall be released and discharged from all
obligations under this Article Eleven upon such use in the case of clause (x) or
upon such delivery in the case of clause (y). The Trustee shall, at the sole
cost and expense of the Company and upon receipt of an Opinion of Counsel that
the provisions of this Section 11.03 have been complied with, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section. Any Guarantor not so released remains liable for the full
amount of principal of (premium, if any) and interest on the Securities and the
other obligations of the Company hereunder as provided in this Article Eleven.
SECTION 11.04. Limitation of Guarantor's Liability.
-----------------------------------
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirm that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 11.05, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 11.05. Contribution.
------------
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
----- --
distribution is made by any Guarantor (a "Funding Guarantor") under the
-----------------
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
--- ----
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.04, for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Guarantor's obligations with respect to the Guarantee.
SECTION 11.06. Execution of Guarantee.
----------------------
To further evidence their Guarantee to the Holders, any Guarantor
required to Guarantee the Securities pursuant to Section 4.18 shall execute the
endorsement of Guarantee in substantially the form set forth in Exhibit A
---------
hereto, which endorsement shall be delivered to each Holder to be attached to
each Security. Each such Guarantor hereby agrees that its Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee. Each such Guarantee
shall be signed on behalf of each Guarantor by its Chairman of the Board, its
President or one of its Vice Presidents prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Guarantor. Such signature upon the
Guarantee may be the manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Guarantee, and in case such officer who
shall have signed the Guarantee shall cease to be such officer before the
Security on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed the Guarantee had not ceased to be such officer of the
Guarantor.
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SECTION 11.07. Subordination of Subrogation and Other Rights.
---------------------------------------------
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt of
----------------------------------------------------
Guarantor.
---------
Each Guarantor covenants and agrees, and the Trustee and each Holder
of the Securities by his acceptance thereof likewise covenant and agree, that
the Guarantees shall be issued subject to the provisions of this Article; and
each Person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of, premium, if any, and interest (including Additional Interest) on
the Securities pursuant to the Guarantee made by or on behalf of any Guarantor
shall, to the extent and in the manner set forth in this Article, be
subordinated and junior in right of payment to the prior payment in full in cash
of all existing and future Senior Debt of such Guarantor.
SECTION 12.02. No Payment on Guarantees in Certain Circumstances.
--------------------------------------------------
(a) No direct or indirect payment by or on behalf of any Guarantor of
principal of, premium, if any, or interest (including Additional
Interest) on the Securities (other than payments to Holders from funds
held in trust for the benefit of Holders pursuant to Section 9.01)
pursuant to such Guarantor's Guarantee, whether pursuant to the terms
of the Securities, upon acceleration or otherwise, will be made if, at
the time of such payment, there exists a default in the payment of all
or any portion of the obligations under or in respect of any
Designated Senior Debt of such Guarantor whether at maturity, on
account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the
benefits of this sentence waived by or on behalf of holders of
Designated Senior Debt. In addition, during the continuance of any
non-payment default or non-payment event of default with respect to
any Designated Senior Debt pursuant to which the maturity thereof may
be accelerated, and upon receipt by the Trustee of written notice (the
"Guarantor Payment Blockage Notice") from a holder or holders of such
---------------------------------
Designated Senior Debt or the trustee or agent acting on behalf of
such Designated Senior Debt, then, unless and until such default or
event of default has been cured or waived or has ceased to exist or
such Designated Senior Debt has been discharged or repaid in full in
cash, or the requisite holders of such Designated Senior Debt have
otherwise agreed in writing, no payment or distribution will be made
by or on behalf of such Guarantor on account of or with respect to the
Securities (other than payments to Holders from funds held in trust
for the benefit of Holders pursuant to Section 9.01), during a period
(a "Guarantor Blockage Period") commencing on the date of receipt of
-------------------------
such Guarantor Payment Blockage Notice by the Trustee and ending 179
days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Guarantor Blockage Period extend beyond 179 days from
the date the Guarantor Payment Blockage Notice was given and (y) there must be
180 days in any 360 day period during which no Guarantor Blockage Period is in
effect with respect to such Guarantor. Not more than one Guarantor Blockage
Period may be commenced with respect to each Guarantor during any period of 360
consecutive days. No default or event of default that existed or was
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continuing on the date of commencement of any Guarantor Blockage Period with
respect to the Designated Senior Debt initiating such Guarantor Blockage Period
may be, or be made, the basis for the commencement of any Guarantor Blockage
Period by the holder or holders of such Designated Senior Debt or the trustee or
agent acting on behalf of such Designated Senior Debt, whether or not within a
period of 360 consecutive days, unless such default or event of default has been
cured or waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of
such Designated Senior Debt or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of
such Designated Senior Debt may have been issued, as their respective
interests may appear, but only to the extent that, upon notice from
the Trustee to the holders of such Designated Senior Debt that such
prohibited payment has been made, the holders of such Designated
Senior Debt (or their representative or representatives or a trustee)
notify the Trustee in writing of the amounts then due and owing on
such Designated Senior Debt, if any, and only the amounts specified in
such notice to the Trustee shall be paid to the holders of such
Designated Senior Debt.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc.
-----------------------------------------------
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character (whether in cash, property or
securities) upon any dissolution or winding-up or total or partial
liquidation or reorganization of such Guarantor, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due with respect to all
Senior Debt of such Guarantor shall first be paid in full in cash
before the Holders or the Trustee on their behalf shall be entitled to
receive any payment by such Guarantor of the principal of, premium, if
any, or interest on the Securities pursuant to such Guarantor's
Guarantee, or any payment to acquire any of the Securities for cash,
property or securities, or any distribution with respect to the
Securities of any cash, property or securities. Before any payment may
be made by, or on behalf of, any Guarantor of the principal of,
premium, if any, or interest on the Securities upon any such
dissolution or winding-up or liquidation or reorganization, any
payment or distribution of assets or securities of such Guarantor of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee on their behalf
would be entitled, but for the subordination provisions of this
Indenture, shall be made by such Guarantor or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, directly to the holders of the Senior Debt of
such Guarantor (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their
representative(s) or to the trustee(s) under any indenture pursuant to
which any of such Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all
such Senior Debt in full after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of
such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder at a time
when such payment or distribution is prohibited by Section 12.03(a)
and before all obligations in respect of the Senior Debt of such
Guarantor are paid in full, or payment provided for, such payment or
distribution shall be received and held in trust for the benefit of,
and shall be paid over or delivered to, the holders of such Senior
Debt or their respective representative(s), or to the trustee(s) under
any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to
the payment of such Senior Debt remaining unpaid until all such Senior
Debt has been paid in full after
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giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
SECTION 12.04. Subrogation.
-----------
Upon the payment in full of all Senior Debt of a Guarantor, or
provision for payment, the Holders shall be subrogated (equally and ratably with
all pari passu Indebtedness) to the rights of the holders of such Senior Debt to
---- -----
receive payments or distributions of cash, property or securities of such
Guarantor made on such Senior Debt until the principal of, premium, if any, and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior Debt of
any cash, property or securities to which the Holders or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of such
Senior Debt by Holders or the Trustee on their behalf shall, as between such
Guarantor, its creditors other than holders of such Senior Debt, and the
Holders, be deemed to be a payment by such Guarantor to or on account of such
Senior Debt. It is understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt of the Guarantors, on the other
hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article shall have been
applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior Debt.
SECTION 12.05. Obligations of Guarantors Unconditional.
----------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities or the Guarantee is intended to or shall impair, as among the
Guarantors and the Holders, the obligation of each Guarantor, which is absolute
and unconditional, to pay to the Holders the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with the terms of the Guarantee, or is intended to or shall affect
the relative rights of the Holders and creditors of any Guarantor other than the
holders of Senior Debt, nor shall anything herein or therein prevent any Holder
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt in respect of cash,
property or securities of any Guarantor received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders to take any
action to declare the Securities to be due and payable prior to their stated
maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt of any Guarantor then due and payable
-------- -------
shall first be paid in full before the Holders or the Trustee are entitled to
receive any direct or indirect payment from such Guarantor of principal of or
interest on the Securities pursuant to such Guarantor's Guarantee.
SECTION 12.06. Notice to Trustee.
------------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company or a Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. Failure to give such notice to the Trustee shall not
affect the subordination of the Securities to Senior Debt of the Guarantors. The
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Debt or of any other
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facts which would prohibit the making of any payment to or by the Trustee unless
and until the Trustee shall have received notice in writing to that effect
signed by an Officer of the Company, or by a holder of Senior Debt or trustee or
agent therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
-------- -------
provided for in this Section 12.06 at least three Business Days prior to the
date upon which by the terms of this Indenture any moneys shall become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from any Guarantor and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 12.06 shall limit the right of the holders of Senior
Debt of a Guarantor to recover payments as contemplated by Section 12.02 or
12.03. The Trustee shall be entitled to conclusively rely on the delivery to it
of a written notice by a Person representing himself or itself to be a holder of
any Senior Debt of a Guarantor (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Debt of a Guarantor or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 12.07. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors.
-----------------------------------------------
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of the Guarantors
which may at any time be held by them in their individual or any other capacity
to the same extent as any other holder of such Senior Debt, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of a Guarantor's Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of Guarantors (except as provided
in Section 12.03(b)). The Trustee shall not be charged with knowledge of the
existence of Senior Debt or of any facts that would prohibit any payment
hereunder unless the Trustee shall have received written notice to that effect
at the address of the Trustee set forth in Section 13.02.
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SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions of
---------------------------------------------------------
the Guarantors or Holders of Senior Debt of Guarantors.
------------------------------------------------------
No right of any present or future holders of any Senior Debt of
Guarantors to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by any Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with. The provisions of this Article are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt of
Guarantors.
SECTION 12.10. Securityholders Authorize Trustee to Effectuate
-----------------------------------------------
Subordination of Guarantee.
--------------------------
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its or his Securities in the form required in those proceedings.
SECTION 12.11. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
SECTION 12.12. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 12.13. No Waiver of Guarantee Subordination Provisions.
-----------------------------------------------
Without in any way limiting the generality of Section 12.09, the
holders of Senior Debt of the Guarantors may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of the Guarantors, do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Debt of the Guarantors or any instrument evidencing the same or
any agreement under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any manner
for the collection of such Senior Debt; and (d) exercise or refrain from
exercising any rights against any Guarantor and any other Person.
SECTION 12.14. Payments May Be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) a Guarantor, except under the conditions described in Section 12.02,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, premium, if
-68-
any, and interest on the Securities, to the holders entitled thereto unless at
least three Business Days prior to the date upon which such payment becomes due
and payable, the Trustee shall have received the written notice provided for in
Section 12.02(b) or in Section 12.06.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
----------------------------
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.02. Notices.
-------
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile, by overnight courier, or mailed by
first-class mail addressed as follows:
if to the Company:
Triton PCS, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxx X. XxXxxxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
THE BANK OF NEW YORK
Xxxxxxx Xxxxxxx
-69-
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when telephonic acknowledgment of receipt is
obtained, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed, by first
class mail, postage prepaid, or by overnight air courier promising next Business
Day delivery, including any notice delivered in connection with TIA (S)(S)
310(b), 313(c), 314(a) and 315(b), to him at his address as set forth on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA (S) 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA (S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with; and
(3) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee
that complies with TIA (S) 314(c).
-70-
SECTION 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; provided,
--------
however, that with respect to matters of fact an Opinion of Counsel
-------
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.07. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture, the
Securities and the Guarantee without regard to principles of conflicts of law.
SECTION 13.08. No Recourse Against Others.
--------------------------
No director, officer, employee or stockholder, as such, of the Company
or any of its Subsidiaries shall have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantees or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Securities.
SECTION 13.09. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of each Guarantor in this Indenture and
the Guarantee of such Guarantor shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
-71-
SECTION 13.11. Severability.
------------
In case any provision in this Indenture, in the Securities or in the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.13. Legal Holidays.
--------------
If a payment date is not a Business Day at a place of
payment, payment may be made at that place on the next succeeding Business Day,
and no interest shall accrue for the intervening period.
[Signature Page Follows]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
TRITON PCS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
GUARANTORS:
TRITON MANAGEMENT COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
TRITON PCS FINANCE COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS PROPERTY COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS LICENSE COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY, INC.,
as Manager of each of the foregoing
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
-0-
XXX XXXX XX XXX XXXX
as Trustee
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------
Title: Vice President
------------------------
EXHIBIT A
TRITON PCS, INC.
CUSIP No. [___________]
No. 1 $__________
8 3/4% SENIOR SUBORDINATED NOTE DUE 2011
TRITON PCS, INC. promises to pay to CEDE & CO. or registered assigns
the principal sum of [__________] Dollars on November 15, 2011.
Interest Payment Dates: November 15 and May 15, beginning May 15, 2002.
Record Dates: November 1 and May 1.
IN WITNESS WHEREOF, TRITON PCS, INC. has caused this instrument to be
executed by duly authorized officers.
TRITON PCS, INC.
By:
________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Dated: November 14, 2001 By:
________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Office
-2-
Certificate of Authentication:
This is one of the 8 3/4% Senior Subordinated Notes due 2011 referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:_______________________________ Date: November 14, 2001
Authorized Signatory
(REVERSE OF SECURITY)
TRITON PCS, INC.
8 3/4% Senior Subordinated Note due 2011
1. Interest.
--------
Triton PCS, Inc., a Delaware corporation (the "Company"), promises to
pay cash interest at the rate of 8 3/4% per annum on the principal amount of
this Security semiannually commencing on May 15, 2002, until the principal
hereof is paid or made available for payment. Interest on the Securities will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including November 14, 2001, through
but excluding the date on which interest is paid. If an Interest Payment Date
falls on a day that is not a Business Day, the interest payment to be made on
such Interest Payment Date will be made on the next succeeding Business Day with
the same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
-----------------
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the Person in whose name this Security is
registered at the close of business on the regular record date, which shall be
the May 1 or November 1 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for, and any interest payable on such defaulted interest (to the extent lawful),
will forthwith cease to be payable to the Holder on such regular record date and
shall be paid to the person in whose name this Security is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Company, notice of which shall be given to Holders
not less than 15 days prior to such special record date. Payment of the
principal of and interest on this Security will be made at the agency of the
Company maintained for that purpose in New York, New York and at any other
office or agency maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security register.
3. Paying Agent and Registrar.
--------------------------
-2-
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders of Securities. The Company or any of
its Subsidiaries may act as Registrar or co-Registrar but may not act as Paying
Agent.
4. Indenture.
---------
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 8 3/4% Senior Subordinated Notes due 2011 (the
"Securities"), issuable under an indenture dated as of November 14, 2001 (the
"Indenture"), between the Company, the guarantors a party thereto (the
"Guarantors") and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by the Trust Indenture Act
of 1939 (the "Act") (15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on the date
of the Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Act for a statement of them.
Each Securityholder, by accepting a Security, agrees to be bound to all of the
terms and provisions of the Indenture, as the same may be amended from time to
time. Payment on each Security is guaranteed on a senior subordinated basis,
jointly and severally, by the Guarantors pursuant to Article Eleven of the
Indenture.
The Securities are subordinated in right of payment to all Senior Debt
of the Company to the extent and in the manner provided in the Indenture. Each
Holder of a Security, by accepting a Security, agrees to such subordination,
authorizes the Trustee to give effect to such subordination and appoints the
Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
-------------------
The Securities will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after November 15, 2006 and
prior to maturity, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Securities to be redeemed, in amounts of $1,000 or an integral
multiple of $1,000, at the following redemption prices (expressed as percentages
of principal amount), plus accrued interest to but excluding the date fixed for
redemption (subject to the right of Holders on the relevant Record Date to
receive interest due on an interest payment date that occurs on or prior to the
date fixed for redemption), if redeemed during the 12-month period beginning
November 15 of the years indicated:
Year Percentage
---- ----------
-3-
2006 104.375%
2007 102.917%
2008 101.458%
2009 and thereafter 100.000%
In addition, on or prior to November 15, 2004, the Company may redeem
up to 35% of the principal amount of the Securities originally issued with the
net cash proceeds received by the Company from one or more Equity Offerings, at
a redemption price equal to 108.75% of the principal amount thereof, plus
accrued and unpaid interest to the date fixed for redemption; provided, however,
that at least 65% in aggregate principal amount of Securities remains
outstanding immediately after any such redemption (excluding any Securities
owned by the Company or any of its Affiliates). Notice of redemption described
in this paragraph must be mailed to Holders of Securities not later than 60 days
following the consummation of the relevant Equity Offering.
Selection of Securities for any partial redemption shall be made by
the Trustee, in accordance with the rules of any national securities exchange on
which the Securities may be listed or, if the Securities are not so listed, pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair. Securities in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000. Notice of redemption will be mailed before
the date fixed for redemption to each Holder of Securities to be redeemed at his
or her registered address. On and after the date fixed for redemption, interest
will cease to accrue on Securities or portions thereof called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Offer to Purchase upon Occurrence of a Change of Control.
--------------------------------------------------------
Within 30 days following a Change of Control, the Company will
offer to purchase the Securities at a purchase price equal to 101% of the
principal amount thereof plus any accrued and unpaid interest thereon.
7. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first class mail at least
30 days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 may be redeemed in
-4-
part. On and after the redemption date, interest ceases to accrue on those
Securities or portion of them called for redemption.
8. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner
of it for all purposes.
10. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee or Paying Agent will repay the funds to the
Company at its request. After such repayment Holders of Securities entitled to
such funds must look to the Company for payment unless an abandoned property law
designates another person.
11. Discharge Prior to Redemption or Maturity.
-----------------------------------------
The Indenture will be discharged and canceled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or United States Government Obligations sufficient for such payment or
redemption.
12. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities, and any past default
or compliance with any provision may be waived with the consent of the Holders
of a majority in principal amount of the outstanding Securities. Without notice
to or the consent of any Holder, the Company, the Guarantors and the Trustee may
amend or supplement the Indenture or the Securities to cure any ambiguity,
defect or inconsistency, or to make any change that does not adversely affect
the rights of any Holder of Securities.
13. Restrictive Covenants.
---------------------
-5-
The Indenture restricts, among other things, the ability of the
Company or any Restricted Subsidiary to permit any Liens to be imposed on its
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company or any Restricted Subsidiary may incur and limits
the terms on which the Company may engage in certain Asset Dispositions. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report quarterly to the Trustee on compliance with the
covenants in the Indenture.
14. Successor Corporation.
---------------------
Pursuant to the Indenture, the ability of the Company to
consolidate with, merge with or into or transfer its assets to another person is
conditioned upon certain requirements, including certain financial requirements
applicable to the surviving Person.
15. Defaults and Remedies.
---------------------
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, to the date the Securities become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Company.
-----------------------------
The Trustee in its individual or any other capacity, may become
the owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
--------------------------
No director, officer, employee or stockholder, as such, of the
Company or any of its Subsidiaries shall have any liability for any obligations
of the Company or any Guarantor under the Securities, the Guarantee or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
-6-
18. Authentication.
--------------
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
-------------
The laws of the State of New York shall govern the Indenture and
this Security and the Guarantee without regard to principles of conflicts of
law.
The Company will furnish to any Holder of record of Securities
upon written request and without charge a copy of the Indenture.
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor(s) (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee on a senior subordinated basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, premium, if any, and interest on the Securities,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal, premium and, to the extent permitted by
law, interest, if any, on the Securities, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Eleven of the Indenture.
The obligations of each Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article Eleven of the Indenture, and are expressly subordinated and subject
in right of payment to the prior payment in full of all Senior Debt of such
Guarantor, to the extent and in the manner provided, in Article Twelve of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of the Guarantee therein made.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
TRITON MANAGEMENT COMPANY, INC.
By: ____________________________________
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
TRITON PCS FINANCE COMPANY, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS PROPERTY COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS LICENSE COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY, INC.,
as Manager of each of the foregoing
By: ____________________________________
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _____________________________________, agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: ________________ Signed: ______________________________________
(Sign exactly as name appears on the other side
of this Security)
Signature Guarantee: __________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [_]
If you want to elect to have only part of this Security purchased by
the Company, state the aggregate principal amount: $
Dated: ________________ Signed: _______________________________
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee: ___________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
TRITON PCS, INC.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
[Name and Address of Registrar]
Re: 8 3/4% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of November 14,
2001 (the "Indenture"), between Triton PCS, Inc. (the "Company") and The Bank of
---------
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to transfer the
----------
Security[ies] specified in Annex A hereto in the principal amount of $___ in
such Security[ies] (the "Transfer"), to ________ (the "Transferee"), as further
-------- ----------
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [_] Check if Transferee will take an Interest in the 144A Global
------------------------------------------------------------
Security. The Transfer is being effected pursuant to and in accordance with Rule
--------
144A under the United States Securities Act of 1933, as amended (the "Securities
----------
Act"), and, accordingly, the Transferor hereby further certifies that the
---
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
2. [_] Check if Transferee will take an Interest in the Regulation S
-------------------------------------------------------------
Global Security pursuant to Regulation S. The Transfer is being effected
----------------------------------------
pursuant to and in accordance with Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the
-2-
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
904(b) of Regulation S under the Securities Act and (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the Security will be subject to the restrictions on
Transfer enumerated in the Securities Act Legend printed on the Regulation S
Global Security and in the Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a Restricted
-------------------------------------------------------------------
Physical Security pursuant to Rule 144A or Regulation S. One or more of the
-------------------------------------------------------
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 1 above; or
(b) [_] such Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 2 above.
4. [_] Check if Transferee will take an Interest in the Unrestricted Global
--------------------------------------------------------------------
Security The Transfer is being effected pursuant to and in accordance with Rule
--------
144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Securities will
no longer be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
5. [_] Check if Transferee will take an Interest in the Physical Global
----------------------------------------------------------------
Security that does not bear the Securities Act Legend One or more of the events
-----------------------------------------------------
specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions
-3-
on transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
-4-
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________
[Insert Name of Transferor]
By: ______________________________
Name: _______________________
Title: _______________________
Dated: _______________________
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] Interests in the
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (ISIN _____).
(b) [_] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [_] Interests in the:
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (ISIN _____), or
(iii) [_] Unrestricted Global Security (CUSIP _____); or
(b) [_] Physical Securities that bear the Securities Act Legend;
(c) [_] Physical Securities that do not bear the Securities Act Legend;
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
TRITON PCS, INC.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 8 3/4% Senior Subordinated Notes due 2011
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of November 14,
2001 (the "Indenture"), between Triton PCS, Inc. (the "Company") and The Bank of
---------
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
------
Security[ies] specified herein, in the principal amount of $___ in such
Security[ies] (the "Exchange"). In the event Holder holds Physical Securities,
--------
this Certificate is accompanied by one or more certificates aggregating at least
the principal amount of Securities proposed to be Exchanged. In connection with
the Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Physical Securities or Interests in the Initial
Global Security for Physical Securities that do not bear the Securities Act
Legend or Unrestricted Global Securities
(a) [_] Check if Exchange is from Initial Global Securities to the
----------------------------------------------------------
Unrestricted Global Security. In connection with the Exchange of the Holder's
----------------------------
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
--------------
and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
(b) [_] Check if Exchange is from Restricted Physical Securities to an
--------------------------------------------------------------
Interest in the Unrestricted Global Security. In connection with the Holder's
--------------------------------------------
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(c) [_] Check if Exchange is from Restricted Physical Securities to
-----------------------------------------------------------
Physical Securities that do not bear the Securities Act Legend. In connection
--------------------------------------------------------------
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Physical Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Securities Act Legend are not required in order to
maintain compliance with the Securities Act and (iv) one or more of the events
specified in Section 2.06(a) of the Indenture have occurred.
2. [_] Check if Exchange is from Restricted Physical Securities to Interests
---------------------------------------------------------------------
in an Initial Global Security. In connection with the Exchange of the Holder's
-----------------------------
Restricted Physical Security for interests in an Initial Global Security [[CHECK
ONE] 144A Global Security, Regulation S Global Security], with an equal
principal amount, (i) the interests in the Initial Global Security are being
acquired for the Holder's own account without transfer and (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Physical Security and pursuant to and in accordance with the
Securities Act. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Initial Global Security issued will be subject
to the restrictions on transfer enumerated in the Securities Act Legend printed
on the Initial Global Securities and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuers.
_____________________________
[Insert Name of Holder]
By: _________________________
Name: ___________________
Title: __________________
Dated: __________________
