EXHIBIT 4.2
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF OMNIPOINT CORPORATION.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (00 XXXXX XXXXXX,
XXX XXXX, XXX XXXX) ("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 OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR
OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH OMNIPOINT
CORPORATION OR ANY AFFILIATE OF OMNIPOINT CORPORATION WAS THE OWNER OF ANY
NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO OMNIPOINT
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED STATES, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT OMNIPOINT
CORPORATION SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND
(II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING IN THE INDENTURE GOVERNING THIS NOTE IS
COMPLETE AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
2
OMNIPOINT CORPORATION
____
11 1/2% Senior Notes due 2009
CUSIP _________
$__________
OMNIPOINT CORPORATION, a Delaware corporation (the "Company", which
-------
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to Cede & Co., or its registered assigns, the
principal sum of ________________________ dollars ($__________) on September 15,
2009.
Interest Payment Dates: March 15 and September 15, commencing March
15, 2000.
Regular Record Dates: March 1 and September 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: OMNIPOINT CORPORATION,
as Issuer
By_________________________
Name:
Title:
By_________________________
Name:
Title:
This is one of the 11 1/2% Senior Notes due 2009 described in the
withinmentioned Indenture.
HSBC BANK USA,
as Trustee
By_________________________
Authorized Signatory
4
REVERSE SIDE OF NOTE
OMNIPOINT CORPORATION
11 1/2% Senior Note due 2009
(1) Principal and Interest. The Company promises to pay the principal
----------------------
of this Note on September 15, 2009.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at 11 1/2% per annum
until maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 5 of the Registration Rights Agreement referred to below.
Interest and Liquidated Damages, if any, will be payable semiannually
in arrears (to the holders of record of the Notes, as reflected in the Security
Register at the close of business on the March 1 or September 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
March 15, 2000.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that, if there is no existing default in the payment of
interest and if this Note is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium and
Liquidated Damages, if any, and interest on overdue installments of interest, to
the extent lawful, at the rate borne by the Notes.
(2) Method of Payment. The Company will pay interest (except
-----------------
defaulted interest) on the principal amount of the Notes as provided above and
Liquidated Damages, if any, on each March 15 and September 15 to the Persons who
are Holders (as reflected in the Security Register at the close of business on
the March 1 and September 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is cancelled on registration of transfer,
registration of exchange, redemption or repurchase after such Regular Record
Date. With respect to the payment of principal, the Company will make payment
to the Holder that surrenders this Note to a Paying Agent on or after September
15, 2009.
5
The Company will pay principal, premium and Liquidated Damages, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts at the office or agency of
the Company maintained for such purposes in the Borough of Manhattan, City of
New York. The Company, at its option, may pay principal, premium and Liquidated
Damages, if any, and interest by its check payable in such money mailed to a
Holder's registered address (as reflected in the Security Register), provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, premium and Liquidated Damages, if any, and interest
on all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. If an Interest
Payment Date is a date other than a Business Day, payment may be made on the
next succeeding day that is a Business Day with the same force and effect as if
made on the day such payment was due and in the case of such payment no interest
shall accrue for the intervening period.
(3) Paying Agent and Registrar. Initially, the Trustee will act as
--------------------------
authenticating agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without notice. The Company,
any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or co-Registrar.
(4) Indenture; Limitations. The Company issued the Notes under an
----------------------
Indenture, dated as of September 23, 1999 (the "Indenture"), between the Company
---------
and HSBC Bank USA, as trustee (the "Trustee"). Capitalized terms herein are
-------
used as defined in the Indenture unless otherwise indicated. Reference is made
to the Indenture and the Trust Indenture Act for a full, complete and detailed
statement of the purposes for which the Notes are issued, the terms on which the
Notes are issued, a description of the security pledged and assigned for payment
of the Notes and the terms, provisions and conditions governing payment of the
Notes and the provisions, among others, with respect to the nature and extent of
the rights, duties and obligations of the Trustee, the Paying Agent, the
Registrar, the authenticating agent, Holders and the Company. The holder of
this Note, by acceptance of this Note, is deemed to have agreed and consented to
the terms and provisions of the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. If any provision of this Note conflicts with the Indenture, the
terms of the Indenture control.
The Notes are general unsecured obligations of the Company. The
Indenture limits the original aggregate principal amount of the Notes to
$205,000,000.
(5) Optional Redemption. The Notes will be redeemable, at the
-------------------
Company's option, in whole or in part, at any time or from time to time, on or
after September 15, 2004 and prior to maturity, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each Holder's last
address as it appears in the Security Register, at the Redemption Prices
(expressed in percentages of principal
6
amount) set forth below, plus accrued and unpaid interest and Liquidated
Damages, if any, to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date), if redeemed during the 12
month period commencing September 15, of the years set forth below:
Redemption
Year Price
---- ----------
2004 105.750%
2005 103.833%
2006 101.917%
2007 and thereafter 100.000%
In addition, at any time prior to September 15, 2002, the Company may
redeem up to 35% of the aggregate principal amount of the Notes originally
issued, at any time as a whole or from time to time in part, with the proceeds
of one or more Public Equity Offerings or sales of Capital Stock (other than
Redeemable Stock) to one or more Strategic Equity Investors, each such Public
Equity Offering or sale to Strategic Equity Investors resulting in Net Cash
Proceeds of $50 million or more, at a redemption price (expressed as a
percentage of principal amount) of 111.50%, plus accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date, provided that after any such
redemption at least 65% of the aggregate principal amount of Notes originally
outstanding remains outstanding and each such redemption is effected not more
than 60 days after the consummation of such Public Equity Offering or sale to
Strategic Equity Investors.
If less than all of the Notes are to be redeemed at any time, the
Trustee will select the Notes, or portions thereof, for redemption in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate, provided
that no Note of $1,000 in principal amount or less shall be redeemed in part.
Notes in denominations larger than $1,000 may be redeemed in part. If any Note
is to be redeemed in part only, the notice of redemption relating to such Note
shall state the portion of the principal amount thereof to be redeemed. Any
notice mailed as provided herein and in the Indenture will be conclusively
presumed to have been given whether or not actually received by any Holder. On
and after the Redemption Date, interest ceases to accrue on Notes or portions of
Notes called for redemption, unless the Company defaults in the payment of the
Redemption Price. A new Note in original amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note.
(6) Repurchase upon Change of Control and Asset Sale. The Company
------------------------------------------------
shall commence, within 30 days of the occurrence of a Change of Control
7
Event, and consummate an Offer to Purchase for all Notes then outstanding at a
purchase price equal to 101% of the principal amount thereof, plus accrued
interest and Liquidated Damages, if any, to the Payment Date. The Notes may also
be subject to an Offer to Purchase in connection with an Asset Sale. Any Note
delivered for payment of a purchase price shall be accompanied by an instrument
in the form of the Option of the Holder to Elect Purchase below.
(7) Denominations; Transfer; Exchange. The Notes are in registered
---------------------------------
form without coupons in denominations of $1,000 of principal amount and
multiples of $1,000 in excess thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents (including a certificate in the form of the Certificate to be
Delivered upon Exchange or Registration of Transfer of Securities below) and to
pay any taxes, fees and/or other governmental charges required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before the day of the
mailing of a notice of redemption of Notes selected for redemption.
(8) Persons Deemed Owners. A Holder shall be treated as the owner of
---------------------
a Note for all purposes.
(9) Unclaimed Money. If money for the payment of principal, premium
---------------
and Liquidated Damages, if any, or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
written request. After that, Holders entitled to the money must look to the
Company for payment, unless applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
(10) Defeasance and Discharge Prior to Redemption or Maturity. If the
--------------------------------------------------------
Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of, premium and Liquidated
Damages, if any, and accrued interest on the Notes to redemption or maturity,
and complies with certain other provisions of the Indenture relating thereto,
(i) the Company will be deemed to have paid and will be discharged from any and
all obligations in respect of the Notes or (ii) certain provisions set forth in
the Indenture will no longer be in effect with respect to the Notes.
(11) Amendment; Supplement; Waiver. Subject to certain exceptions,
-----------------------------
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing default or compliance with any provision may
be waived with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make any
change that does not adversely affect the rights of any Holder.
8
(12) Restrictive Covenants. The Indenture imposes certain limitations
---------------------
on the ability of the Company and its Restricted Subsidiaries, among other
things, to (a) Incur additional Indebtedness, (b) make Restricted Payments, (c)
use the proceeds from Asset Sales, (d) suffer to exist restrictions on the
ability of Restricted Subsidiaries to make certain payments to the Company, (e)
issue Capital Stock of Restricted Subsidiaries, (f) engage in transactions with
certain stockholders and Affiliates, (g) suffer to exist or incur Liens, (h)
Guarantee Indebtedness of the Company or (i) merge, consolidate or transfer
substantially all of its assets. Within 90 days after the end of the last
fiscal quarter of each year, the Company shall deliver to the Trustee an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default under such restrictive covenants.
(13) Successor Persons. When a successor Person or other entity
-----------------
assumes all the obligations of its predecessor under the Notes and the
Indenture, the predecessor Person will be released from those obligations.
(14) Defaults and Remedies. An Event of Default is: (a) defaults in
---------------------
the payment of principal of (or premium, if any, on) any Note when the same
becomes due and payable at Stated Maturity, upon acceleration, redemption or
otherwise; (b) defaults in the payment of interest (or Liquidated Damages, if
any) on any Note when the same becomes due and payable, and such default
continues for a period of 30 days; (c) defaults in the performance or breach of
the provisions of Article V of the Indenture or the failure to make or
consummate an Offer to Purchase in accordance with Sections 4.11 or 4.12 of the
Indenture; (d) defaults in the performance of or breaches of any covenant or
agreement of the Company in the Indenture or under the Notes (other than a
default specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Notes; (e) there occurs with
respect to any issue or issues of Indebtedness of the Company or any Significant
Subsidiary having an outstanding principal amount greater than $10 million in
the aggregate for all such issues of all such Persons, whether such Indebtedness
now exists or shall hereafter be created, (i) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and/or (ii) the failure to make a principal payment
and such defaulted payment shall not have been made, waived or extended within
30 days of such payment default; (f) any final judgment or order (not covered by
insurance or indemnification by a Person other than the Company or a Restricted
Subsidiary, which indemnity party is solvent and has acknowledged
responsibility) (treating any deductibles, self-insurance or retention as not so
covered) for the payment of money greater than $10 million in the aggregate for
all such final judgments or orders shall be rendered against the Company or any
Significant Subsidiary and shall not be paid or discharged or bonded over, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged or bonded over to exceed $10
million during which a stay of enforcement of such final judgment or order by
reason of a pending appeal or otherwise
9
shall not be in effect; (g) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, (ii) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company or any Significant Subsidiary or (iii) the
winding up or liquidation of the affairs of the Company or any Significant
Subsidiary and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or (h) the Company or any
Significant Subsidiary (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any Significant
Subsidiary or (iii) effects any general assignment for the benefit of creditors.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) above that occurs with respect to the Company) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding by written notice to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal
amount of, premium and Liquidated Damages, if any, and accrued interest on the
Notes to be immediately due and payable. Upon a declaration of acceleration,
such principal amount of, premium and Liquidated Damages, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) above has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of the
relevant Indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (g) or (h) above
occurs with respect to the Company, the principal amount of, premium and
Liquidated Damages, if any, and accrued interest on the Notes then outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. At any time
after such declaration of acceleration, but before a judgment or decree for the
payment of the money due has been obtained by the Trustee, the Holders of at
least a majority in principal amount of the outstanding Notes, by written notice
to the Company and to the Trustee may waive all past defaults and rescind and
annul a declaration of acceleration and its consequences if (i) all existing
Events of Default, other than the nonpayment of the principal amount of, premium
and Liquidated Damages, if any, and interest on the Notes that have become due
solely by such declaration of acceleration have been cured or waived and (ii)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
10
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided that
the Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Notes not joining in the giving of such direction; and provided
further, that the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes. A Holder
may not pursue any remedy with respect to the Indenture or the Notes unless: (i)
the Holder gives the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding
Notes make a written request to the Trustee to pursue the remedy, (iii) such
Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense; (iv) the Trustee does not comply with
the request within 60 days after receipt of the request and the offer of
indemnity, and (v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request. However, such limitations do
not apply to the right of any Holder of a Note to receive payment of the
principal amount of, premium and Liquidated Damages, if any, or interest on,
such Note or to bring suit for the enforcement of any such payment, on or after
the due date expressed in the Notes, which right shall not be impaired or
affected without the consent of the Holder.
The Indenture requires certain officers of the Company to certify, on or
before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under the Indenture and that the Company has fulfilled all obligations
thereunder, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Company is also obligated to notify the Trustee of any default or defaults in
the performance of any covenants or agreements under the Indenture.
(15) Trustee Dealings with Company. The Trustee under the Indenture,
-----------------------------
in its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates as if it were not the Trustee.
(16) No Recourse Against Others. No incorporator or any past, present
--------------------------
or future partner, shareholder, other equity holder, officer, director, employee
or controlling person as such, of the Company or of any successor Person shall
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note expressly waives
and releases all such liability. The waiver and release are a condition of, and
part of the consideration for the issuance of the Notes.
11
(17) Authentication. This Note shall not be entitled to any right or
--------------
benefit under the Indenture, or be valid, or become obligatory for any purpose,
until the Trustee or authenticating agent signs the certificate of
authentication on the other side of this Note.
(18) Abbreviations. Customary abbreviations may be used in the name
-------------
of a Holder 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).
(19) Additional Rights of Holders of Notes. In addition to the rights
-------------------------------------
provided under the Indenture, Holders of Notes shall have all the rights set
forth in the Registration Rights Agreement, dated as of September 23, 1999,
among the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
(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 Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(21) Governing Law. The Indenture and the Notes shall be governed by
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the laws of the State of New York. The Trustee, the Company and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to the Indenture or the
Notes.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to Omnipoint Corporation, 0 Xxxxxxxx Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxxx.
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Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the
face of this Note)
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Signature Guarantee:
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, check the box below:
[ ] Section 4.11 [ ] Section 4.12
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11 or Section 4.12 of the Indenture, state the
amount you elect to have purchased: $
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Date: Your Signature:
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(Sign exactly as your name appears on the
Note)
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Signature Guarantee:
Tax Identification No:
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Xxxxxx
Xxxxxx of decrease Amount of increase of this
in in Principal Amount Global Note Signature of
Principal Amount of this following such authorized officer
of this Global Note decrease (or of Trustee or
Global Note increase) Custodian
Date of Exchange
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15
